Hines v. SSA

Filing 18

MEMORANDUM OPINION & ORDER: 1) Pla's motion for jgm on the pldgs 13 is DENIED; 2) Dft's motion for SJ 17 is GRANTED; 3) A jgm shall be entered concurrently w/this opinion. Signed by Magistrate Judge Hanly A. Ingram on 5/10/18.(MRS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
DONNA P. HINES,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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No. 6:17-CV-160-HAI
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MEMORANDUM OPINION
&
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ORDER
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I. Procedural History and ALJ Decision
On April 30, 2014, Plaintiff Donna Hines protectively filed a Title II application for
disability insurance benefits and a Title XVI application for supplemental security income. D.E.
11-1 at 102, 115, 116. 1 The Social Security Administration denied the claims initially and upon
reconsideration. Id. at 113, 129. On September 10, 2014, Plaintiff requested a hearing, which
occurred in Lexington, Kentucky, on January 6, 2016. Id. at 38, 145, 160. Administrative Law
Judge (“ALJ”) Davida H. Isaacs heard testimony from an impartial vocational expert (“VE”),
Joyce P. Forrest, and from Plaintiff, who was represented by counsel. Id. at 39, 195, 310.
Under 20 C.F.R. §§ 404.1520 and 416.920, the ALJ conducts a five-step analysis to
evaluate a disability claim. 2 The ALJ followed these procedures in this case. See D.E. 11-1 at
22-32.

1

This is Plaintiff’s second application for disability benefits. Her first was filed on February 22, 2013, and the
initial application was denied on April 25, 2013. D.E. 11-1 at 103. There is no evidence in the record that her first
application was appealed or that the current matter is a request to reopen it. Id. (indicating status of first application
as “Closed”).
2
The Sixth Circuit summarized this process in Jones v. Comm’r of Soc. Sec., 336 F.3d 469 (6th Cir. 2003):

At the first step, if a claimant is working at a substantial gainful activity, she is not
disabled. 20 C.F.R. § 404.1520(b). In this case, the ALJ found that Plaintiff “has not engaged in
substantial gainful activity since January 2, 2013, the alleged onset date.” D.E. 11-1 at 24.
At the second step, if a claimant does not have any impairment or combination of
impairments which significantly limit her physical or mental ability to do basic work activities,
then she does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). The
ALJ found that Plaintiff did suffer the following significant impairments: “obstructive sleep
apnea (OSA), osteoarthritis, and plantar fasciitis.” D.E. 11-1 at 24. The ALJ found that Plaintiff
did not have severe liver disease or a severe mental impairment. Id. at 25.
At the third step, if a claimant’s impairments meet the duration requirement and meet or
equal the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1, then she is disabled. 20 C.F.R.
§ 404.1520(d). The ALJ found Plaintiff failed to meet this standard. D.E. 11-1 at 27.
If, as here, a claimant is not found disabled at step three, the ALJ must determine the
claimant’s Residual Functional Capacity (“RFC”), which is the most work she can do despite her
limitations. 20 C.F.R. §§ 404.1520(e), 1545(a)(1). The ALJ determined that Plaintiff had the
RFC
[T]o perform light work as defined in 20 CFR 404.1567(b) except the claimant
can never climb ladders, ropes or scaffolds and can no more than occasionally
climb ramps and stairs, stoop, kneel, crouch, crawl, or push/pull/handle objects
with the non-dominant left hand. The claimant cannot perform any overhead
reaching with the right, dominant arm. The claimant must avoid more than
To determine if a claimant is disabled within the meaning of the Act, the ALJ employs a five-step
inquiry defined in 20 C.F.R. § 404.1520. Through step four, the claimant bears the burden of
proving the existence and severity of limitations caused by her impairments and the fact that she is
precluded from performing her past relevant work, but at step five of the inquiry . . . the burden
shifts to the Commissioner to identify a significant number of jobs in the economy that
accommodate the claimant’s residual functional capacity (determined at step four) and vocational
profile.
Id. at 474 (internal citations omitted).

2

frequent exposure to wetness/humidity and avoid more than occasional exposure
to vibrations from machinery or hand tools. The claimant will require one extra
bathroom break per day for a total of five minutes.
D.E. 11-1 at 27. Plaintiff argues that the RFC is not supported by substantial evidence because
the ALJ failed to properly consider her depression and obesity and erred in weighing opinion
evidence when formulating the RFC. D.E. 13-1.
At the fourth step, if a claimant’s impairments do not prevent her from doing past
relevant work (given the ALJ’s assessment of her residual functional capacity), she is not
disabled. 20 C.F.R. § 404.1520(f). The ALJ found that Plaintiff did not meet this standard
because she was able to perform her past relevant work as a tour guide as it is generally
performed. D.E. 11-1 at 30.
At the fifth step, if a claimant’s impairments (considering her RFC, age, education, and
past work) do not prevent her from doing other work that exists in the national economy, she is
not disabled. 20 C.F.R. § 404.1520(g). Although the ALJ found that Plaintiff was able to
perform her past relevant work, she proceeded to step 5 and made an alternative finding that,
based on Plaintiff’s RFC, age, education, and past work, “there are other jobs that exist in
significant numbers in the national economy that [Plaintiff] also can perform.” D.E. 11-1 at 31.
The ALJ explained that she asked the VE at the hearing “whether jobs exist in the national
economy for an individual with the claimant’s age, education, work experience, and residual
functional capacity.” Id. She accepted the VE’s testimony that Plaintiff could perform the
requirements of representative occupations such as office helper and inspector/tester. Plaintiff
was therefore “not disabled” as defined by the regulations. Id.
Accordingly, on March 10, 2016, the ALJ issued her decision, finding that Plaintiff was
not disabled, and was therefore ineligible for disability insurance benefits and supplemental

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security income. Id. at 31-32. The Appeals Council denied Plaintiff’s request for review on
April 18, 2017. Id. at 5.
On June 20, 2017, Plaintiff initiated this civil action under 42 U.S.C. §§ 405(g) and
1383(c) to obtain judicial review of the ALJ’s decision denying her application for disability
insurance benefits.

D.E. 2.

Defendant, the Commissioner of Social Security (“the

Commissioner”), filed an answer on September 8, 2017. D.E. 11. On November 7, 2017,
Plaintiff filed a motion for judgment on the pleadings. D.E. 13. Plaintiff argues that the RFC is
not supported by substantial evidence because the ALJ made multiple errors when formulating it,
and that these harmful errors warrant remand. D.E. 13-1. First, Plaintiff argues that the ALJ
failed to consider her depression when formulating the RFC, despite being required under the
regulations to do so. Id. at 8. Consideration of her depression, Plaintiff argues, would have
reduced the number of jobs available to her. Id. at 11. Second, Plaintiff argues that the ALJ
erred when she gave Dr. Thomas Howard’s opinion less weight because he was an examining
physician, saw Plaintiff the same amount as the consultative examiner, and provided treatment
notes consistent with the record. Id. at 12. Giving Dr. Howard’s opinion greater weight,
Plaintiff argues, would have put her at sedentary work and, consequently, would have resulted in
a finding of disability under the regulations. Id. Third, Plaintiff argues that the ALJ failed to
mention or consider her obesity when formulating the RFC, and therefore the opinion was
unsupported by substantial evidence and warrants remand.

Id. at 13-14.

Commissioner

responded, and also moved for summary judgment. D.E. 17.
On November 14, 2017, the parties filed a joint motion, consenting to have the
undersigned “conduct all proceedings in this case including trial, the entry of final judgment, and
all post-trial proceedings.” D.E. 14. District Judge Van Tatenhove referred the matter to the

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undersigned “to conduct all proceedings and order the entry of judgment in accordance with 28
U.S.C. § 636(c) and Fed. R. Civ. P. 73.” D.E. 16.
II. Framework for Judicial Review
The Social Security Act defines “disability” 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.’” Sorrell v. Comm’r of Soc. Sec., 656 F. App’x 162, 169 (6th
Cir. 2016) (quoting 42 U.S.C. § 423(d)(1)(A)). The burden is on Plaintiff to prove that she is
disabled within the meaning of the regulations. Hernandez v. Comm’r of Soc. Sec., 644 F. App’x
468, 473 (6th Cir. 2016) (citing Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010)).
Judicial review of the denial of a claim for Social Security benefits is limited to determining
whether the ALJ’s findings are supported by substantial evidence and whether the correct legal
standards were applied. Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Substantial evidence” is “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) (internal quotation marks and citations omitted). The
substantial evidence standard “presupposes that there is a zone of choice within which the
decisionmakers can go either way, without interference by the courts.” Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (en banc) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
1984)).
In determining the existence of substantial evidence, courts must examine the record as a
whole. Id. at 545. However, courts are not to conduct a de novo review, resolve conflicts in

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evidence, or make credibility determinations. Bradley v. Sec’y of Health & Human Servs., 862
F.2d 1224, 1228 (6th Cir. 1988).

Rather, if the “evidence could reasonably support the

conclusion reached[,]” then the ALJ’s decision must stand, even if the evidence could also
support another conclusion. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
Disability determinations often hinge on the claimant’s credibility.

The ALJ must

consider statements or reports from the claimant. 20 C.F.R. § 404.1529(a). To determine
whether statements of a claimant are credible, the following two-part test is used:
First, the ALJ will ask whether [ ] there is an underlying medically determinable
physical impairment that could reasonably be expected to produce the claimant’s
symptoms. Second, if the ALJ finds that such an impairment exists, then he must
evaluate the intensity, persistence, and limiting effects of the symptoms on the
individual’s ability to do basic work activities.
Rogers, 486 F.3d at 247 (citing 20 C.F.R. § 416.929(a) (internal citations omitted). 3 It is within
the province of the ALJ, rather than the reviewing court, to evaluate the credibility of witnesses,
including the claimant.

Id.

Even so, the credibility determinations of the ALJ must be

reasonable and supported by substantial evidence. Id. at 249.
III. Analysis
Plaintiff argues that the ALJ’s determination is not supported by substantial evidence
because the ALJ failed to consider Plaintiff’s non-severe depression when she formulated the
RFC, improperly weighed Dr. Howard’s medical opinion, and failed to mention Plaintiff’s

3

In 20 C.F.R. § 404.1529, the Social Security Administration informs claimants that, in certain credibility
determinations, the following factors should guide the analysis of the agency decision makers:
(i) Your daily activities; (ii) The location, duration, frequency, and intensity of your pain or other
symptoms; (iii) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects
of any medication you take or have taken to alleviate your pain or other symptoms; (v) Treatment, other
than medication, you receive or have received for relief of your pain or other symptoms; (vi) Any measures
you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15
to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other factors concerning your functional
limitations and restrictions due to pain or other symptoms.

20 C.F.R. § 404.1529(c)(3); see also Felisky v. Bowen, 35 F.3d 1027, 1037-38 (6th Cir. 1994).

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obesity in the opinion. After a thorough and careful consideration of the record, the undersigned
DENIES Plaintiff’s motion for judgment on the pleadings (D.E. 13) and GRANTS the
Commissioner’s motion for summary judgment (D.E. 17).
A. Consideration of Plaintiff’s Non-Severe Mental Impairments in Formulating RFC
The RFC is “an assessment of an individual’s ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing basis.” SSR 96-8p,
1996 WL 374184, at *1 (July 2, 1996). The RFC determination is a matter reserved for the
ALJ. See 20 C.F.R. § 404.1527(d)(2). The ALJ considers “the medical evidence, non-medical
evidence, and the claimant’s credibility.” Coldiron v. Comm’r of Soc. Sec., 391 F. App’x. 435,
443 (6th Cir. 2010). An ALJ’s RFC finding will be upheld if it is supported by substantial
evidence. Johnson v. Colvin, No. 7:15-039-DCR, 2016 WL 3257124, at *5 (E.D. Ky. June 13,
2016).
The RFC “considers only functional limitations and restrictions that result from an
individual’s medically determinable impairments or combination of impairments, including the
impact of any related symptoms.” SSR 96-8p(2), 1996 WL 374184, at *1. This includes “all . . .
medically determinable impairments of which [the ALJ is] aware, including . . . medically
determinable impairments that are not ‘severe[.]’”

20 C.F.R. § 404.1545(a)(2); see also

LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 388 (6th Cir. 2013) (“[T]he ALJ’s
assessment of residual functional capacity reflects a claimant’s functional capacity in light of all
of his limitations, not just those that are ‘severe.’”). The ALJ must “identify the individual’s
functional limitations or restrictions and assess his or her work-related abilities on a function-byfunction basis, including [physical and mental functions]. Only after that may RFC be expressed
in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR

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96-8p(4), 1996 WL 374184, at *1. Regarding mental abilities, the ALJ must assess “the nature
and extent of [the] mental limitations and restrictions and then [determine the] RFC for work
activity on a regular and continuing basis.” 20 C.F.R. § 404.1545(c). A limited ability to
perform mental activities may reduce the claimant’s ability to do work. 20 C.F.R. § 404.1545(c).
If there is no allegation of a physical or mental limitation of a specific functional capacity, and
no information in the record that there is a limitation, the ALJ “must consider the individual to
have no limitation or restriction with respect to that functional capacity.” SSR 96-8p(3), 1996
WL 374184, at *1.
If the ALJ discusses an impairment in the step two severity analysis, and finds the
impairment to be nonsevere, he or she must still consider the impact of any non-severe
limitations in the RFC analysis. Patterson v. Colvin, 5:14-CV-1470, 2015 WL 5560121, at *2
(N.D. Ohio Sept. 21, 2015) (“Even when there is substantial evidence, however, a decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and that error prejudices a claimant on the merits or deprives the claimant of a
substantial right.”); Katona v. Comm’r of Soc. Sec., No. 14-CV-10417, 2015 WL 871617, at *7
(E.D. Mich. Feb. 27, 2015) (“The ALJ’s analysis of Plaintiff’s mental impairments at Step Two,
while otherwise thorough, does not provide the Court with a basis to infer that Plaintiff's mental
impairments, either singly or in combination with Plaintiff’s other impairments, generated no
work-place restrictions or limitations.”). Remand may be necessary if it is unclear whether the
ALJ considered an impairment in the RFC analysis. Simpson v. Comm’r of Soc. Sec., 344 F.
App’x 181, 191-92 (6th Cir. 2009). Boilerplate language will not suffice. Workman v. Berryhill,
No. 7:16-261-DCR, 2017 WL 3880661, at *2 (E.D. Ky. Sept. 5, 2017) (rejecting boilerplate

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language indicating ALJ considered all symptoms and remanding when ALJ failed to evaluate
mental impairments in RFC analysis); Johnson, 2016 WL 3257124, at *3 (same).
However, if the ALJ finds that the claimant has at least one severe impairment, then he or
she implicitly considers all impairments – severe and nonsevere – in the subsequent steps. Scott
v. Berryhill, No. 5:16-CV-108-REW, 2017 WL 875480, at *3 (E.D. Ky. Mar. 3, 2017) (noting
ALJ indicated careful consideration of entire record and all symptoms in decision and discussed
nonsevere impairments during hearing). “[I]t is well settled that[ ] an ALJ can consider all the
evidence without directly addressing in h[er] written decision every piece of evidence submitted
by a party.” Id. (quoting Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 507-08 (6th Cir.
2006)). An “ALJ’s failure to cite specific evidence does not indicate that it was not considered.”
Id. (quoting Simons v. Barnhart, 114 F. App’x 727, 733 (6th Cir. 2004)).
Plaintiff argues that the ALJ failed to mention her depression when determining the RFC,
and instead “focused solely on [her] physical impairments . . . .” D.E. 13-1 at 9-10. Plaintiff
notes that the ALJ “acknowledged that [she] would have mild limitations in activities of daily
living, social functioning, and concentration, persistence, or pace” at the step two severity
analysis, but she argues that the ALJ “failed to account for them in formulating the RFC, because
the RFC includes no mental limitations whatsoever.” Id. at 10. Plaintiff argues that the ALJ’s
omission amounted to harmful error because the skills affected by Plaintiff’s depression are
required even in unskilled work. Id. at 11. “[T]he basic mental demands of competitive,
remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out,
and remember simple instructions; to respond appropriately to supervision, coworkers, and usual
work situations; and to deal with changes in a routine work setting.” Id. (quoting SSR 85-15,
S.S.A. 1985). If the ALJ had included her depression in the RFC, Plaintiff’s argument goes, then

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her prior work of a tour guide may have been eliminated (allowing Plaintiff to proceed to step
five of the analysis and shifting the burden to the Commissioner) and would “severely limit the
potential occupational base.”

Id.

(quoting SSR 85-15).

This prevents a proper review,

according to Plaintiff, because “the Commissioner’s late-tendered rationale for the ALJ’s
dismissal of Plaintiff’s mental impairments would invite this Court to engage in impermissible
post hoc rationalization for Agency action.” Id. at 10 (citing Berryhill v. Shalala, 4 F.3d 993 (6th
Cir. 1993)). Therefore, plaintiff urges the Court to remand. Id. at 11.
The Commissioner, on the other hand, argues that Plaintiff failed to meet her burden to
prove that her non-severe depression resulted in any workplace limitations and, therefore, the
ALJ did not fail to consider Plaintiff’s depression in determining her RFC. D.E. 17 at 7. “Far
from ignoring evidence relevant to Plaintiff’s mental condition, the ALJ explicitly discussed it.”
Id. at 8. The Commissioner points to the ALJ’s discussion of the effectiveness of Plaintiff’s
medication, Wellbutrin, and reported activity level, and argues that it was “legally sufficient to
demonstrate that the ALJ considered Plaintiff’s non-severe depression when she assessed her
RFC . . . .” Id. “Plaintiff’s suggestion that an ALJ must separately address every non-severe
impairment within the RFC assessment regardless of whether it causes any workplace limitations
in untenable.”

Id.

Instead, the Commissioner argues that an “ALJ need only consider a

claimant’s severe and non-severe impairments when assessing her RFC.” Id. at 9. “Here, the
ALJ explicitly recognized the distinction between [the consideration required at the step two
severity analysis and the RFC determination]. Plaintiff simply failed to meet her burden to prove
that her mild depression . . . resulted in any workplace limitations that the ALJ was obligated to
include in her RFC.” Id. (internal citations omitted).

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During step two of the analysis, the ALJ found that Plaintiff did not have a severe mental
impairment. D.E. 11-1 at 25. When making this finding, the ALJ gave great weight to the
medical source opinions of the state agency psychologists because they “also found no severe
impairment” and “[t]heir medical source opinions [were] wholly consistent with the evidence of
record.” Id. The ALJ reasoned that Plaintiff “has no history of treatment by a mental health
provider, although, she has a history of taking Wellbutrin and consultative examiner, M. Maude
O’Neill, Ph.D., diagnosed [Plaintiff] as having a depressive disorder.

Dr. O’Neill gave

[Plaintiff] a Global Assessment of functioning of 65, indicating only mild limitations in
functioning.” Id. Further, “[Plaintiff] has no anxiety, depression, changes in personality, or
change in social functioning upon examination in December 2014 and November 2015.” Id.
Finally, the ALJ concluded that Plaintiff’s “medically determinable mental impairment of an
affective disorder does not cause more than minimal limitation in [Plaintiff’s] ability to perform
basic mental work activities and is therefore non-severe.” Id.
The ALJ considered the four broad functional areas set out in the disability regulations
for evaluating mental disorders in section 12.00C of the Listing of Impairments, or the
“paragraph B” criteria. 20 C.F.R., Part 404, Subpart P, App. 1. Regarding the first functional
area, daily living, the ALJ found that Plaintiff had mild limitation because she is able to drive
and run errands, groom herself independently, handle her money, manage her appointments and
medications, help care for her grandchildren and pets, prepare simple meals daily, help with
household chores, shop outside the home and online, and participate in recreational activities
such as reading, watching television, attending church, and fishing. D.E. 11-1 at 26. Regarding
the second functional area, social functioning, the ALJ similarly found that Plaintiff had mild
limitation in this area because she spends time with others in social situations, interacts and

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responds appropriately to co-workers, supervisors, and the public in a work setting, and did not
report specific problems getting along with authority figures, co-workers, or the general public.
Id. Regarding the third functional area, concentration, persistence, or pace, the ALJ determined
that she had a mild limitation because she is able “to perform the plethora of daily tasks noted
above.” Id. Finally, the ALJ considered the fourth functional area, episodes of decompensation,
and found that Plaintiff had no episodes of extended duration. Id. The ALJ ultimately concluded
that “because [Plaintiff’s] medically determinable mental impairment causes no more than ‘mild’
limitations in any of the first three functional areas and ‘no’ episodes of decompensation which
have been of extended duration in the fourth area it is nonsevere.” Id. at 26 (citing 20 C.F.R.
404.1520a(d)(1)).

The ALJ’s determination that Plaintiff’s nonsevere mental impairment

imposes no more than a mild limitation is supported by substantial evidence.
At the conclusion of the step two severity analysis, the ALJ explained,
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 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 I have
found in the ‘paragraph B’ mental function analysis.
Id. at 26-27.
The ALJ then determined Plaintiff’s RFC. The ALJ noted “careful consideration of the
entire record[,]” consideration of “all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence[,]”
and consideration of opinion evidence. Id. at 27. The ALJ explicitly stated that she considered
whether a mental limitation existed that could reasonably be expected to produce Plaintiff’s

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symptoms, and then she considered the intensity, persistence, and limiting effects of those
symptoms to determine the extent to which they limit Plaintiff’s functioning. Id. The ALJ’s
RFC analysis focused primarily on Plaintiff’s symptoms of physical impairments, i.e. pain in her
joints, feet, hands, etc., rather than her mental impairments. However, the ALJ explicitly stated
that that “Wellbutrin was reportedly helpful for depression.” Id. at 29.

When discussing

Plaintiff’s daily activities, the ALJ found that her “daily activities are significant, and are
inconsistent with her allegations of symptoms so severe that she cannot engage in any time of
work activity.” Id. at 30. “She drives, shops, attends church and church activities, and cares for
her grandchildren and pets.” Id. The ALJ also discussed Plaintiff’s mental impairment with her
at the administrative hearing. Id. at 73. Although the RFC analysis focuses primarily on
Plaintiff’s physical impairments and only briefly mentions her mental impairment, the ALJ
previously explained that the RFC reflected limitations from the mental impairment.
At first blush, it may appear that the language “the following residual functional capacity
assessment reflects the degree of limitation I have found in the ‘paragraph B’ mental function
analysis” included in the ALJ’s opinion (D.E. 11-1 at 26-27) is mere boilerplate. But, that
language appears after a thorough discussion of limitations associated with the “paragraph B”
criteria. Id. at 25-27. So the boilerplate characterization is not appropriate. The ALJ explicitly
stated that limitations associated with Plaintiff’s depression were considered in her RFC analysis.
Requiring separate findings amounts to characterizing the purported boilerplate statement as
necessarily false and, in this Court’s view, would require an overly technical restatement of
findings previously made by the ALJ.

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B. The ALJ Properly Discounted the Medical Opinion of Dr. Thomas Howard
The ALJ is required to consider every medical opinion in the record along with the rest of
the relevant evidence. 20 C.F.R. § 404.1527(b)-(c). A medical opinion of a source who has
examined the plaintiff will receive more weight than the opinion of a source who has not
examined the claimant. 20 C.F.R. § 404.1527(c)(1). The regulations differentiate between
treating sources and non-treating sources. A treating source receives more weight than a nontreating source, “since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations . . . .” 20 C.F.R. § 404.1527(c)(2). A treating
source is defined as an acceptable medical source “who provides [ ], or has provided [ ], medical
treatment or evaluation and who has, or has had, an ongoing treatment relationship [with the
claimant].” 20 C.F.R. § 404.1527(a)(2). The Social Security Administration will “consider that
[the claimant has] an ongoing treatment relationship with an acceptable medical source when the
medical evidence establishes that [the claimant sees], or [has] seen, the source with a frequency
consistent with accepted medical practice for the type of treatment and/or evaluation required for
[the] medical condition(s).” 20 C.F.R. § 404.1527(a)(2).
If the treating source’s medical opinion regarding the nature and severity of the
claimant’s impairments is supported by medically acceptable clinical and laboratory diagnostic
techniques, and not inconsistent with the other substantial evidence in the record, then it receives
controlling weight. 20 C.F.R. § 404.1527(c)(2). However, if the treating source’s opinion does
not receive controlling weight, the ALJ considers the following factors when determining how
much weight to give that source’s opinion: (1) the length of the treatment relationship and

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frequency of examination, (2) the nature and extent of the treatment relationship, (3) the amount
of relevant evidence presented to support the opinion, (4) the consistency of the medical opinion
with the record as a whole, and (5) the specialization of the source.

20 C.F.R.

§ 404.1527(c)(2)(i)-(c)(6).
The ALJ may consider opinions from sources who are not acceptable medical sources.
20 C.F.R. 404.1527(f)(1). When doing so, the ALJ applies each factor discussed above on a
case-by-case basis. “[A]n opinion from a medical source who is not an acceptable medical
source . . . may outweigh the medical opinion of an acceptable medical source, including the
medical opinion of a treating source.” 20 C.F.R. § 404.1527(f)(1). For example, the opinion of a
non-acceptable medical source who has seen the claimant over a longer period of time may
outweigh the opinion of an acceptable medical source who has only seen the claimant once. Id.
The ALJ “generally should explain the weight given to opinions from these sources or otherwise
ensure that the discussion of the evidence in the . . . decision allows a claimant or subsequent
reviewer to follow the [ALJ’s] reasoning.” 20 C.F.R. § 404.1527(f)(2).
Here, multiple medical sources provided opinions regarding Plaintiff’s ability to perform
work activities. Although not a treating source, the ALJ gave great weight to consultative
examiner Dr. Nashaud Haziq’s opinion because his “examination was more thorough than
physical examinations by treating sources who barely mentioned any findings upon examination
of the claimant’s joints/extremities.” D.E. 11-1 at 29. Dr. Haziq saw Plaintiff once. Dr. Haziq
reported Plaintiff was able to get up and down from the examination table without difficulty,
appeared comfortable sitting and lying down, had no respiratory abnormalities, had no
limitations of the neck, arms, or hands, had no edema of the extremities, had no redness or
warmth of any extremity, had normal grip strength in the hands and could make a fist, could pick

15

up coins and write with her dominant hand, had mild limitation of movement in the lumbar
spine, had normal muscle strength, and had no neurological deficits. Id.; see also D.E. 11-1 at
487-89.
Dr. Thomas Howard, a rheumatologist, also saw Plaintiff once, on December 2, 2014. Id.
at 740. Dr. Howard determined that Plaintiff had “chronic osteoarthritis” and presented with
“multiple arthralgias[,]” and noted that she had primary biliary cirrhosis. Id. at 743. His
differential diagnosis included “inflammatory arthropathy associated with [primary biliary
cirrhosis], or connective tissue disease, less likely crystalline arthropathy[.]” Id. He ordered xrays to determine the source of the arthralgias. Multiple x-rays of Plaintiff’s hands, wrists,
knees, and feet were reviewed, and detailed findings resulted in a diagnostic impression of “[n]o
radiographic evidence of an inflammatory arthropathy” by the physician reviewing the x-rays,
Dr. Jason Montgomery. Id. at 681-82.
Dr. Howard provided a medical source statement in which he opined that Plaintiff could
not be reasonably expected to work an eight-hour day, five days per week, without missing more
than two days per month due to her disabilities. Id. at 503. He noted that, while Plaintiff did not
have any limitations sitting, she did have limitations with prolonged standing and walking,
stooping, and climbing. Id. Further, he opined that, in an average workday, she could frequently
carry one to five pounds, occasionally carry six to ten pounds, and could never carry more than
eleven pounds. Id. She could continuously use her hands for gross manipulation, frequently use
her hands for fine manipulation and raise her left arm over her shoulder, but could never raise her
right arm over her shoulder. Id. Dr. Howard indicated that, in his opinion, Plaintiff’s condition
causes moderately severe pain, requires her to elevate her legs and lie down two to three times
per day, and would require her to take unscheduled breaks during an eight-hour workday. Id. at

16

504. He based his opinions on her impairments of primary biliary cirrhosis and inflammatory
arthritis. Id. at 503.
The ALJ gave little weight to Dr. Howard’s medical opinion because “Dr. Thomas
treated [Plaintiff] only one time and, even more notably, found no evidence of inflammatory
disease – which leaves his opinion as to [Plaintiff’s] limitation outside his area of expertise.” Id.
at 29. The ALJ incorporated some limitations regarding use of the upper extremities in the RFC.
Id.; see also D.E. 11-1 at 27 (“I find that [Plaintiff] has the residual functional capacity to . . . no
more than occasionally . . . push/pull/handle objects with the non-dominant left hand. The
[Plaintiff] cannot perform any overhead reaching with the right, dominant arm.”).
Plaintiff argues that the ALJ should have afforded more weight to Dr. Howard’s opinion
because “he was an examining physician and his opinion is consistent with his treatment notes
and the record as a whole.” D.E. 13-1 at 12 (citing 20 C.F.R. § 404.1527). Regarding whether
Dr. Howard’s opinion was outside of his area of expertise, Plaintiff notes that Dr. Howard
diagnosed multiple arthralgias and chronic osteoarthritis, so, she argues, his opinion was within
his area of expertise. Id. The Commissioner argues that “[t]he ALJ reasonably questioned
whether Dr. Howard – who saw Plaintiff only once, in December 2014 – would have a
longitudinal picture of Plaintiff’s condition when he rendered his opinion[]” and “Dr. Howard’s
opinion was outside of his expertise and therefore due less weight.” D.E. 17 at 10. Additionally,
the Commissioner points out that Dr. Howard’s “opinion was fundamentally inconsistent with
his solitary examination note.” Id. at 10-11.
Dr. Howard is not a treating source. Both parties acknowledge that he saw Plaintiff only
one time before providing his medical opinion. D.E. 13-1 at 12; D.E. 17 at 9. There was no
“ongoing treatment relationship” as required by 20 C.F.R. § 404.1527(a)(2). Therefore, his

17

opinion is not due automatic controlling weight. See 20 C.F.R. § 404.1527(c)(2). The ALJ
properly weighed the relevant factors when determining how much weight to give Dr. Howard’s
opinion, and her determination that his opinion was due less weight is supported by substantial
evidence in the record.
It is unclear whether Dr. Howard’s opinion is outside of his area of expertise. The case
relied upon by the Commissioner, Hool v. Comm’r of Soc. Sec., No. 12-CV-10894, 2012 WL
6149403, at *9 (E.D. Mich. Dec. 11, 2012) is distinguishable because it discussed an opinion
regarding mental limitations from a source who was not a psychiatrist. “Since Dr. Hissong is
not a psychiatrist, the ALJ was entitled to discount his opinion on questions involving more
mental rather than physical limitations.” Id. Here, Dr. Howard is a rheumatologist and he
provided an opinion regarding physical limitations resulting from inflammatory arthritis. This is
much less attenuated from his expertise than the opinion in Hood. Plaintiff provides no support
for her statement that Dr. Howard’s diagnosis of inflammatory arthritis is within his area of
expertise.
However, the ALJ also indicated in her determination that she discounted Dr. Howard’s
opinion because it relied on a diagnosis of inflammatory arthritis. D.E. 11-1 at 29 (“[E]ven more
notably, [Dr. Howard] found no evidence of inflammatory disease.”). Dr. Howard relied on a
diagnosis that Plaintiff does not have. See Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 652
(6th Cir. 2006) (en banc) (upholding ALJ’s determination that medical source’s opinion was
“less than credible” because its many medical assessments were inconsistent). Although his
differential diagnosis included inflammatory arthropathy and he relied upon this diagnosis when
providing his medical opinion, the x-rays he requested ultimately found no evidence of that
disease.

Compare D.E. 11-1 at 743, 503, with D.E. 11-1 at 683.

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Contrary to Plaintiff’s

argument, Dr. Howard’s opinion is inconsistent with his own treatment notes, and was therefore
due less weight. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant
evidence to support a medical opinion, particularly medical signs and laboratory findings, the
more weight we will give that medical opinion.”). The ALJ correctly discounted Dr. Howard’s
medical opinion.
Plaintiff argues that Dr. Howard’s opinion was consistent with the record as a whole.
D.E. 13-1 at 12.

However, the ALJ provided a lengthy discussion of Plaintiff’s physical

symptoms, Plaintiff’s own testimony, medical source opinions, and other evidence throughout
the RFC determination. Id. at 27-30. The ALJ’s discussion is consistent with the record. This is
certainly “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)

Because the

ALJ’s determination is supported by substantial evidence, it must be affirmed even if the
reviewing court would decide the matter differently, and even if substantial evidence also
supports the opposite conclusion. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir.
1999). Although it is unclear whether Dr. Howard’s diagnosis was within his area of specialty,
his opinion was inconsistent and relied upon a diagnosis that Plaintiff does not have. The ALJ’s
decision regarding the weight attributed to Dr. Howard’s opinion was proper.
C. Consideration of Plaintiff’s Obesity
Obesity is defined as “a complex, chronic disease characterized by excessive
accumulation of body fat.” SSR 02-1p, 2002 WL 34686281, at *2 (Sept. 12, 2002). When
establishing the existence of obesity, the ALJ will “rely on the judgment of a physician who has
examined the claimant and reported his or her appearance and build, as well as weight and
height.” Id. at *3. Although obesity is no longer considered a listed impairment, it is considered

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a medical impairment, so it must be considered at each step of the ALJ’s analysis. Id. at *1; see
also Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016). This is because “the
combined effects of obesity with other impairments can be greater than the effects of each of the
impairments considered separately.” SSR 02-1p, 2002 WL 34686281, at *1. Specifically, the
ALJ must take into account “the effect obesity has upon the individual’s ability to perform
routine movement and necessary physical activity within the work environment” and an
individual’s ability to sustain a function over time when formulating the RFC. Id. at *6.
However, the “ALJ is not required to use any ‘particular mode of analysis’ in assessing
the effect of obesity. Shilo v. Comm’r of Soc. Sec., 600 F. App’x 956, 959 (quoting Bledsoe v.
Barnhart, 165 F. App’x 408, 411-12 (6th Cir. 2006)). “[T]he ALJ does not need to make
specific mention of obesity if [s]he credits an expert’s report that considers obesity.” Bledsoe,
165 F. App’x at 412. If all of the evidence the ALJ relies on considers the claimant’s obesity,
then the ALJ will have satisfied the regulations. Caldwell v. Berryhill, No. 6:12-253-DCR, 2017
WL 957538, at *6 (E.D. Ky. Mar. 10, 2017) (upholding ALJ’s decision, in part, because Plaintiff
did not identify any additional limitations that should have been incorporated and ALJ
considered medical evidence that took obesity into consideration.).
Plaintiff argues that the ALJ erred by failing to consider her obesity “anywhere in the
decision” and “completely ignor[ing] it.” D.E. 13-1 at 14. Therefore, Plaintiff concludes, the
ALJ’s decision is unsupported by substantial evidence and requires remand.

Id.

The

Commissioner responds that remand is not warranted because the ALJ satisfied the regulations
by crediting physicians who explicitly accounted for Plaintiff’s obesity in rendering their
opinions. D.E. 17 at 12. “These two doctors’ examination findings and opinion reflected that
Plaintiff did not experience greater limitations due to obesity than the ALJ ultimately

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concluded.” Id. Additionally, the Commissioner argues that Plaintiff “has not identified any
additional limitations that should have been incorporated because of [her] obesity, but were not.”
Id. at 13 (quoting Caldwell, 2017 WL 957538, at *6). “That is, even if the ALJ should have
more thoroughly discussed Plaintiff’s obesity, any error would be immaterial because there is no
evidence that Plaintiff’s obesity limited her more than the ALJ concluded.” Id.
At the outset, the Court notes that Plaintiff did not identify obesity as a condition that
limits her ability to work in her Disability Report. D.E. 11-1 at 240 (identifying arthritis, high
cholesterol, hyperthyroidism, primary biliary cirrhosis, depression, sleep apnea, “uses a
CPAP[,]” back pain, plantar [fasciitis], and osteopenia). Additionally, Dr. Haziq and Dr. Brown
explicitly discussed Plaintiff’s obesity in their medical opinions. See id. at 127, 485. Dr. Haziq
and Dr. Brown provided consistent opinions regarding Plaintiff’s physical impairments.
The ALJ did not discuss Plaintiff’s obesity in her determination. However, she gave
great weight to opinions of medical sources who explicitly considered Plaintiff’s obesity. D.E.
11-1 at 29 (giving great weight to the opinions of Dr. Haziq and Dr. Brown). Dr. Haziq
specifically noted Plaintiff’s obesity in his opinion; he described Plaintiff as a “48-year-old
moderately obese female who presents today with a three-year history of pain in her middle and
lower back.” Id. at 485. Likewise, Dr. Brown also considered Plaintiff’s weight. Id. at 127
(citing Dr. Ginny Gottschalk’s description of Plaintiff’s “abnormal weight gain” as an additional
explanation for his RFC determination). Because the ALJ relied on opinions of medical sources
who explicitly considered Plaintiff’s obesity, she considered Plaintiff’s obesity in formulating the
RFC. Caldwell, 2017 WL 957538, at *6. Plaintiff has failed to show that the ALJ applied the
law incorrectly or that the RFC was not supported by substantial evidence.

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Regarding the first four steps of the analysis, Plaintiff carries the burden of proving that
she is disabled within the regulations. Hernandez, 644 F. App’x at 474 (citing Ealy, 594 F.3d at
512).

Plaintiff has failed to identify any additional limitations that should have been

incorporated, but were not. This absence of elaboration “likely stems from the fact that [Plaintiff]
failed to present evidence of any functional limitations resulting specifically from her obesity.”
Essary v. Comm’r of Soc. Sec., 114 F. App’x 662, 667 (6th Cir. 2004). There is “scant evidence”
in the record that Plaintiff’s obesity causes her physical limitations. See Grech v. Colvin, No.
2014-21 (WOB-CJS), 2015 WL 2354802, at *3 (E.D. Ky. May 15, 2015) (“In fact, other than a
passing reference to Plaintiff being obese or providing a record of her height, weight and BMI on
her medical charts, her providers provided no specific discussion of Plaintiff’s obesity or how it
impacts her functioning.”). “[A]ny findings regarding the effects of obesity must be based on
evidence in the record.” Gipson v. Colvin, No. 5:15-336-DCR, 2016 WL 4473796, at *3 (E.D.
Ky. Aug. 22, 2016).

The ALJ may not make assumptions about the severity or functional

effects of obesity, otherwise he or she would be required to render a medical opinion, which is
not permitted. Id. (citing Simpson, 344 F. App’x at 194). The only controlling case relied on by
Plaintiff, Shilo v. Comm’r of Soc. Sec., 600 F. App’x 956 (6th Cir. 2015), is distinguishable
because the plaintiff in that case previously received disability benefits due to his morbid obesity
and the ALJ determined that his obesity was a severe impairment. Id. at 957. There is no
allegation, or indication, that Plaintiff is morbidly obese or that her mild-to-moderate obesity
caused any impairments.
Here, the only sources (Drs. Haziq and Brown) who mentioned Plaintiff’s obesity when
providing their medical opinions casually referenced it. See D.E. 11-1 at 127 (“abnormal weight
gain”); D.E. 11-1 at 485 (“[T]he claimant is a 48-year-old moderately obese female . . . .”).

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During the administrative hearing, Plaintiff did not identify it as a complaint and the ALJ did not
discuss her height or weight. While Plaintiff correctly notes that her medical records mention
her obesity, these references are passing and do not indicate any functional limitations. See, e.g.,
id. at 401 (indicating diagnosis of obesity with BMI of 30.0-34.9); D.E. 11-1 at 558-59
(indicating BMI of 35.14 and prescribing medication for obesity); D.E. 11-1 at 587 (identifying
obesity with BMI between 30.0-34.9 under “Problem List/Past Medical”); D.E. 11-1 at 590
(same). Each of the passing references Plaintiff cites indicated mild to moderate obesity, and did
not indicate any limitations resulting from her obesity. Therefore, the ALJ properly applied the
correct legal standards and substantial evidence supports the ALJ’s decision.
V. Conclusion
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as
follows:
(1)

Plaintiff’s motion for judgment on the pleadings (D.E. 13) is DENIED;

(2)

Defendant’s motion for summary judgment (D.E. 17) is GRANTED;

(3)

A judgment shall be entered concurrently with this opinion.

This the 10th day of May, 2018.

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