Arnett v. SSA
OPINION AND ORDER: 1. Plaintiff's motion for summary judgment 12 is DENIED; 2. Commissioner's motion for summary judgment 14 is GRANTED; and 3. This case is stricken from Court's docket. Signed by Judge William O. Bertelsman on 8/18/2017. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CASE NO. 16-249-WOB
COMMISSIONER OF SOCIAL SECURITY
OPINION AND ORDER
This is a Social Security appeal filed by plaintiff, through counsel, pursuant to 42 U.S.C.
§§ 405(g). In accordance with the Court’s standard procedures, both plaintiff and the
Commissioner have filed motions for summary judgment based upon the administrative record.
Docs. 12, 14. After considering the record and applicable law, the Court concludes that the
Commissioner’s motion will be granted and the plaintiff’s will be denied.
I. Factual and Procedural History
Plaintiff Alben Arnett filed an application for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) in April 2013. Tr. (Doc. 10-1) at 213-220. Plaintiff
alleged a disability onset date of July 4, 2010 (Tr. 213) due to polycystic kidney disease,
“[v]ertebraes in back with pain,” a neck injury, unspecified “[h]eart problems,” and high blood
pressure. Tr. 239. Plaintiff reported being 6’4” tall and weighing 230 pounds. Id. After his
claims were denied initially and upon reconsideration (Tr. 52-99), plaintiff requested a hearing
before an ALJ. Tr. 131-132. On March 3, 2015, an initial evidentiary hearing was held by ALJ
Jerry Meade, at which plaintiff--represented by counsel-- testified. Tr. 29-41.
Plaintiff testified that he was born in 1963 and graduated from high school in 1982. Tr.
33. Plaintiff had not worked since July 4, 2010 due to “a back injury . . . kidney trouble . . .
[and] very bad high blood pressure.” Id. Plaintiff suffers from back pain daily which is
exacerbated by “a lot of normal activities” such as “[s]tanding too long, sitting too long.” Tr. 34.
However, plaintiff did not take any medications for his pain besides over the counter “[r]ubs and
lotions.” Tr. 34-35. Plaintiff has numerous cysts on his kidneys, which burst upon activities
such as lifting heavy objects. Id. Plaintiff takes prescription medication for his high blood
pressure, which has been present since he was seventeen. Tr. 37. The medication causes him to
feel numbness in his hands, legs and feet, especially at night. Id. Plaintiff also takes prescription
medication for diabetes. Tr. 38. He is able to drive short distances but lost his commercial
driver’s license in 2013 due to blood pressure issues. Tr. 38-39. At plaintiff’s counsel’s request,
the ALJ ordered plaintiff to undergo a consultative physical exam and, consequently, the record
was not closed at the conclusion of the hearing. Tr. 40.
On September 1, 2015, ALJ Meade conducted a brief second evidentiary hearing. Tr. 4251. Plaintiff summarily testified that his condition had not improved since the previous hearing
and he was unable to afford his blood pressure medication. Tr. 45-46. Gina Baldwin then
testified as a vocational expert (“VE”). Tr. 47-50. The VE testified that from September 30,
1996 to the present plaintiff’s only employment was as a millwright, which was considered a
skilled job performed at the heavy level.1 Tr. 48. The VE and the ALJ then engaged in the
Q [by the ALJ] Ms. Baldwin, if you would, assume a hypothetical individual of
the claimant’s age, education and work experience who is able to lift and carry up
to 20 pounds occasionally, ten pounds frequently. During an eight-hour day, the
individual can sit a total of four hours, stand a total of two hours, walk a total of
For Social Security purposes, jobs are classified as sedentary, light, medium, heavy and very heavy. See 20 C.F.R.
§404.1567 (2017 version). “Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or
carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also
do medium, light, and sedentary work.” 20 C.F.R. §404.1567(d). Light work, by contrast “involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R.
four hours. Needs a sit/stand option at 30-minute intervals. The individual can
occasionally operate foot control[s] with both feet and never climb ladders or
scaffolds. Can occasionally climb ramps and stairs. Occasionally balance, stoop,
kneel, crouch and crawl. Never be exposed to unprotected heights or moving
Can occasionally be exposed to extreme cold, extreme heat, and
vibrations. Can frequently operate a motor vehicle and can frequently be exposed
to humidity and wetness, dust, odors, fumes and pulmonary irritants. Ms.
Baldwin, I’m going to assume and past work is precluded by the lifting
A [by the VE] That is correct.
Q Are there unskilled jobs that such a person could perform?
A Yes, Your Honor. At the light work classification, mail clerk, regionally, and
the region includes West Virginia, Kentucky and Ohio, 1,000 [jobs]. Nationally,
25,000. Parking lot attendant, regionally 1,400. Nationally 40,000. A third
example would be house sitter, regionally, 1,000. Nationally, 15,000. There
would be no sedentary work. . . .
Q Ms. Baldwin, is your testimony consistent with the DOT [Dictionary of
Occupational Titles], including that sit/stand option in the hypothetical?
VE: The DOT is silent on the issue of a sit/stand/walk option; however, I base
this on being a rehabilitation specialist for over 30 years and I completed onsite
job analyses. I also utilized information from the U.S. Department of Labor,
Bureau of Labor Statistics, occupational employment estimates, U.S. Publishing
Company and [inaudible] Browse, which provides for this information.
The ALJ issued his decision on November 17, 2015, using the familiar five-step
sequential evaluation process.2 Tr. 12-23. Regarding plaintiff’s claim for DIB, at Step 1 the
Although a dispositive finding at any step terminates the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730
(6th Cir. 2007), if fully considered the sequential review considers and answers five questions:
1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant's severe impairments, alone or in combination, meet or equal the criteria of an impairment set
forth in the Commissioner's Listing of Impairments?
4. Considering the claimant's residual functional capacity, can the claimant perform his or her past relevant work?
5. Considering the claimant's age, education, past work experience, and residual functional capacity, can the
claimant perform other work available in the national economy?
ALJ found that plaintiff did not engage in substantial gainful activity from the alleged onset date
of July 4, 2010 through September 30, 2011, his date last insured. Tr. 14. At Step 2, the ALJ
found that through the date last insured plaintiff had polycystic kidney disease and hypertension
but those impairments were not severe because they did not significantly limit plaintiff’s ability
to perform basic work-related activities for twelve consecutive months. Id. The conclusion that
plaintiff did not suffer from severe impairments through his date last insured meant that he was
not entitled to DIB. See, e.g., Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990) (“In order to
establish entitlement to disability insurance benefits, an individual must establish that he became
‘disabled’ prior to the expiration of his insured status.”).3
As to the SSI claim, having already determined that plaintiff had not engaged in
substantial gainful activity since July 2010, at Step 2 the ALJ found that since the date the claim
was filed plaintiff suffered from the following severe impairments: obesity, degenerative disc
disease and chronic pain syndrome.4 Tr. 15. The ALJ concluded, however, that plaintiff’s
polycystic kidney disease, diabetes, high blood pressure, chest pain, right shoulder pain and
depression/anxiety were not severe impairments. Tr. 15-16. At Step 3, the ALJ found that
See 20 C.F.R. § 404.1520(a)(4). The five-step process is used for both DIB and SSI claims. See, e.g., Burks v.
Comm’r of Soc. Sec., 2013 WL 2152138, at *8 (N.D. Ohio May 17, 2013) (“The Commissioner uses a five-step
sequential evaluation process to evaluate a DIB or SSI claim.”).
Unfortunately, the ALJ’s opinion does not explicitly state at that point that the lack of a severe impairment meant
plaintiff was not entitled to DIB, even though that was the inevitable result of such a finding. The potential for
confusion inherent in resolving two claims in one opinion could have been minimized if the opinion had more
consistently delineated which findings applied to the DIB claim, which applied to the SSI claim and which applied
to both. However, the failure to draw such explicit lines of demarcation is an inconvenience, not a reversible error.
The ALJ focused on the impairments plaintiff had as of the date he applied for SSI (April 2013) because plaintiff
could not receive SSI until the month after he filed his application. See 20 C.F.R. §416.335 (“When you file an
application in the month that you meet all the other requirements for eligibility, the earliest month for which we can
pay you benefits is the month following the month you filed the application. If you file an application after the
month you first meet all the other requirements for eligibility, we cannot pay you for the month in which your
application is filed or any months before that month.”).
plaintiff did not have an impairment, singly or in combination, which met one of the listed
impairments. Tr. 17-18. Next, as a necessary antecedent to Step 4, the ALJ found that plaintiff
had the following residual functional capacity (“RFC”),5 which largely tracks his hypothetical to
the VE. Specifically, the ALJ found plaintiff had the residual functional capacity to:
lift and carry up to 20 pounds occasionally and 10 pounds frequently. During an
eight-hour day, he can sit a total of four hours; can stand a total of two hours; and
can walk a total of four hours. He needs a sit/stand option at 30-minute intervals.
The claimant can occasionally operate foot controls with both feet. He can never
climb ladders or scaffolds. He can occasionally climb ramps and stairs. He can
occasionally balance, stoop, kneel, crouch and crawl. He can never be exposed to
unprotected heights or moving mechanical parts. He can occasionally be exposed
to extreme cold; extreme heat; and vibrations. He can frequently operate a motor
vehicle. He can frequently be exposed to humidity and wetness, dust, odors,
fumes, and pulmonary irritants.
Tr. 18 (emphasis omitted). Given that RFC, at Step 4 the ALJ concluded that plaintiff could not
perform his past relevant work. Tr. 21. At Step 5, the ALJ concluded that there are jobs that
exist in significant numbers in the national economy at the light exertional level which plaintiff
could perform, including mail clerk, parking lot attendant and house sitter. Tr. 21-22. Thus, the
ALJ found that plaintiff was not disabled. Tr. 22-23.
Plaintiff promptly sought review of the ALJ’s decision by the Appeals Council (Tr. 7-8)
but in October 2016, the Appeals Council denied plaintiff’s request for review. Tr. 1-3. ALJ
Meade’s decision thus became the Commissioner’s final decision. Plaintiff then timely
commenced this action. Doc. 1. Relevant medical/psychological evidence will be discussed as
necessary later in this opinion and order.
A. Standards of Review
RFC “is the most plaintiff can do, not the least, after taking into consideration physical and mental limitations.”
Branon v. Comm’r of Soc. Sec., 539 Fed. App’x 675, 677 n.3 (6th Cir. 2013).
In a Social Security appeal, the Court is to determine whether the ALJ’s non-disability
finding is supported by substantial evidence and made pursuant to proper legal standards. 42
U.S.C. §§ 405(g). See also Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009).
Substantial evidence is “defined as more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quotation marks and citation omitted). If substantial evidence supports the ALJ’s denial of
benefits, then that finding must be affirmed, even if substantial evidence also exists in the record
to support a finding of disability. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the
Sixth Circuit has explained:
The [Commissioner’s] findings are not subject to reversal merely because substantial
evidence exists in the record to support a different conclusion. The substantial
evidence standard presupposes that there is a zone of choice within which the
[Commissioner] may proceed without interference from the courts. If the
[Commissioner’s] decision is supported by substantial evidence, a reviewing court
Id. (quotation marks and citations omitted). See also Rogers, 486 F.3d at 241 (“In deciding
whether to affirm the Commissioner’s decision, it is not necessary that this court agree with the
Commissioner’s finding, as long as it is substantially supported in the record.”). In deciding
whether substantial evidence supports the ALJ's decision, the court does “not try the case de
novo, resolve conflicts in evidence or decide questions of credibility.” Bass v. McMahon, 499
F.3d 506, 509 (6th Cir. 2007). Even if the ALJ's decision meets the substantial evidence
standard, “‘a decision of the Commissioner will not be upheld where the SSA fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007)).
The plaintiff bears the burden of proof through the first four steps of the sequential
process but the burden shifts to the Commissioner at Step 5. Rabbers, 582 F.3d at 652. To be
entitled to benefits, a person must be disabled within the meaning of the Social Security Act,
which is means that a person must present sufficient evidence to show that, during the relevant
time period, he suffered an impairment, or combination of impairments, expected to last at least
twelve months, that left him unable to engage in substantial gainful activity. Id. at 651-652
(citing 42 U.S.C. §§ 423(d)(1)(A)).
B. SSR 83-12 and the Sit/Stand Option
Plaintiff argues that the ALJ failed to comply with Social Security Ruling (“SSR”) 8312’s guidance regarding sit/stand options. According to plaintiff, SSR 83-12 “clarifies that
sit/stand options are not available in unskilled work” so he should have been found disabled
because he was only able to perform light, unskilled work. Doc. 12-1 at 6. Because plaintiff
misconstrues SSR 83-12, the Court disagrees.
SSR 83-12, which can be found at 1983 WL 31253, provides in relevant part:
In some disability claims, the medical facts lead to an assessment of RFC
which is compatible with the performance of either sedentary or light work except
that the person must alternate periods of sitting and standing. The individual may
be able to sit for a time, but must then get up and stand or walk for awhile before
returning to sitting. Such an individual is not functionally capable of doing either
the prolonged sitting contemplated in the definition of sedentary work (and for the
relatively few light jobs which are performed primarily in a seated position) or the
prolonged standing or walking contemplated for most light work. (Persons who
can adjust to any need to vary sitting and standing by doing so at breaks, lunch
periods, etc., would still be able to perform a defined range of work.)
There are some jobs in the national economy--typically professional and
managerial ones--in which a person can sit or stand with a degree of choice. If an
individual had such a job and is still capable of performing it, or is capable of
transferring work skills to such jobs, he or she would not be found disabled.
However, most jobs have ongoing work processes which demand that a worker be
in a certain place or posture for at least a certain length of time to accomplish a
certain task. Unskilled types of jobs are particularly structured so that a person
cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to
sit or stand, a VS [VE] should be consulted to clarify the implications for the
Id. at *4 (emphasis added).
Plaintiff’s core argument is not new. For example, the Seventh Circuit rejected a similar
argument as follows:
Powers relies heavily on Social Security Ruling 83–12, which states that
“unskilled types of jobs are particularly structured so that a person cannot
ordinarily sit or stand at will.” Yet [VE] Janikowski was asked the number of jobs
that did have a sit/stand option, so this Agency description of what the case is
“ordinarily” does not refute, by itself, the opinion of an expert in response to a
specific question. Even if Janikowski's testimony were considered to contradict
the description of sedentary work in the Dictionary of Occupational Titles, which
we do not believe it does, a hearing officer is entitled to rely on expert testimony
that contradicts such authorities. Therefore, substantial evidence supported the
finding that a significant number of jobs existed that could accommodate Powers'
skill level and physical needs.
Powers v. Apfel, 207 F.3d at 436-437 (6th Cir. 2000). In this circuit, the United States District
Court for the Western District of Kentucky has also rejected a functionally indistinguishable
argument. See Bennett v. Astrue, 2008 WL 345523, at *6 (W.D. Ky. Feb. 7, 2008).6 By
In Bennett, Judge Johnstone adopted Magistrate Judge King’s report and recommendation, which
provided in relevant part:
Ms. Harcourt argues that the ALJ impermissibly used a “sit/stand”
option in denying her claim. Pl. Br. at 8-9. She bases her argument on Social
Security Ruling (SSR) 83-12 and Johnson v. Barnhart, No. 04-3438-CV-WHFS, 2006 WL 373896, at *8 (W.D.Mo.2006), which relied on SSR 83-12 to
hold that a claimant limited to unskilled work with a sit/stand option was
SSR 83-12 explains: “In cases of unusual limitation of ability to sit or
stand, a VS [vocational specialist—i.e., a VE] should be consulted to clarify the
implications for the occupational base,” which is what the ALJ did in this case.
This court does not read Johnson as adopting a blanket finding that no unskilled
jobs allow a sit/stand option. The vocational expert in Johnson initially had
testified that the claimant could have worked some light and sedentary unskilled
jobs, but when confronted with SSR 83-12, apparently conceded that his
testimony was inconsistent with it. 2006 WL 373896 at *8. Whatever the
testimony was in that particular case, it is clear that SSR 83-12 itself does not
adopt a view that no unskilled jobs allow a sit/stand option:
contrast, plaintiff cites to no cases to support his argument that SSR 83-12 flatly forecloses the
possibility of a sit/stand option for unskilled jobs.
The VE testified that, though the DOT does not address sit/stand options, her conclusions
were based upon both her experience and various professional resources. “The Sixth Circuit and
other districts in this circuit have ruled that while the DOT does not explicitly refer to sit/stand
options, a vocational expert's opinion regarding such options are not contradictory to the DOT,
because the VE's opinions are based upon his/her personal experience and knowledge.”
Drossman v. Astrue, 2011 WL 4496568, at *7 (N.D. Ohio July 15, 2011) (citing cases), report
and recommendation adopted at 2011 WL 4496561 (N.D. Ohio Sept. 27, 2011). Moreover, as
the court astutely noted in Bennett, “[i]f counsel believed that there was an actual conflict
between the VE's testimony and the DOT, he should have explored the matter at the hearing
rather than first complaining upon judicial review.” 2008 WL 345523, at *6.
In short, notwithstanding plaintiff’s argument to the contrary, SSR 83-12 speaks of
typical situations only and does not foreclose the possibility that unskilled work could include a
Unskilled types of jobs are particularly structured so that a person
cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to
sit or stand, a VS [vocational specialist] should be consulted to clarify the
implications for the occupational base.
SSR 83-12, 1983 WL 31253, *4 (emphasis added). The ALJ in this case
followed the instruction of the second quoted sentence and relied on the
vocational expert's testimony to find that Ms. Harcourt would be able to do
some unskilled jobs that have sit/stand options.
In Powers v. Apfel, 207 F.3d 431 (7th Cir.2000), the Seventh Circuit
explicitly rejected the argument that the plaintiff advances here. The vocational
expert in Powers testified that a number of unskilled jobs had a sit/stand option.
The Seventh Circuit reasoned that the description in SSR 83-12 of what is the
case “ordinarily” does not refute the specific testimony of a vocational expert
testifying at the hearing in response to a specific question. 207 F .3d at 436. That
reasoning applies directly to this case.
2008 WL 345523, at *6 (emphasis added).
sit/stand option. Indeed, the VE testified as to such jobs’ existence, and explained that her
conclusions were based on both her professional experience and information gleaned from
professional resources. The ALJ was consequently permitted to rely upon the VE’s testimony
and plaintiff’s argument fails.
C. Consideration of All Severe Impairments
Plaintiff’s next argument is that “the ALJ errored [sic] multiple times at step two by
failing to consider all the claimant’s severe impairments for both his [DIB] and his [SSI].” Doc.
12-1 at 1 (emphasis omitted). Under 20 C.F.R. §404.1522(a) (2017 version), an impairment “is
not severe if it does not significantly limit your physical or mental ability to do basic work
activities.” The ALJ found plaintiff to have no severe impairments as to the DIB claim and
found obesity, degenerative disc disease and chronic pain syndrome to be severe impairments as
to the SSI claim. Tr. 14-15.
Plaintiff asserts the ALJ should have found his mental impairment, hypertension and
diabetes to all be severe impairments. Doc. 12-1 at 7-10. Indeed, there is evidence in the record
to support a conclusion that plaintiff suffered from all three conditions. For example, William
Rigby, Ph.D., performed a consultative examination of plaintiff in August 2013 and diagnosed
him as having depressive disorder and anxiety disorder. Tr. 444. However, Dr. Rigby also
noted that plaintiff “appears free of major mental health problems such as psychotic conditions”
and his self-reported “range of depressive and anxiety related symptoms” were “moderate in
degree and functionally related to [his] physical problems.” Id. Similarly, Dr. Thomas Smith,
who treated plaintiff for physical problems, noted in his office notes that plaintiff “looks mildly
to moderately depressed.” Tr. 350.7 Additionally, among other conclusions, R. Roy Durrett,
The Court notes a mental health diagnosis based solely upon a person’s appearance is unscientific, to say the least.
M.D., Ph.D., of Kentucky Mountain Health diagnosed plaintiff as suffering from hypertension in
May 2013. Tr. 435. Finally, plaintiff was diagnosed with diabetes at the Highlands Regional
Medical Center in 2014. Tr. 520.
Despite those diagnoses, plaintiff does not cite to any medical evidence of record opining
that those impairments are severe, either singly or in combination with other impairments.
Plaintiff seems to conflate merely being diagnosed with a medical or mental condition to mean
that the condition is severe and consequently entitles him to benefits. However, as the United
States District Court for the Western District of Tennessee cogently noted in a recent opinion,
“[t]he mere fact that Plaintiff has a diagnosis or diagnoses does not mean that she has disabling
limitations. It is well settled that a diagnosis, in and of itself, says nothing about the severity of
the condition. Instead, the ALJ must consider the actual work-related impact of those diagnoses.”
Petty v. Comm’r of Soc. Sec., 2017 WL 396791, at *3 (W.D. Tenn. Jan. 30, 2017) (quotation
marks, footnote and citations omitted). The fact that plaintiff has not cited to the opinion of a
medical or mental health provider who opined that plaintiff is disabled under the terms of the
Social Security Act is fatal to his argument.
However, even if the Court were to assume—solely for purposes of argument—that those
three impairments are severe, the ALJ’s failure to so find would be a harmless error as plaintiff
has not shown how the conditions were disabling (i.e., prevented plaintiff from engaging in
substantial gainful activity). The ALJ discussed Dr. Rigby’s opinions at length and explained
why he gave them little weight. Tr. 20.8 Moreover, Dr. Rigby explicitly noted that plaintiff
This Court has previously rejected an argument almost identical to that raised by plaintiff in a case in which Dr.
Rigby provided a very similar diagnosis--and the claimant’s attorney was the same as is this plaintiff’s. See
Johnson v. Colvin, 2016 WL 3257124, at *4-5 (E.D. Ky. June 13, 2016) (“Likewise, the ALJ did not err in
determining that Johnson's mental impairments were non-severe. The ALJ noted that Johnson's GAF score was 75,
indicating no more than slight impairment in social or occupational functioning. She also highlighted that Dr.
“appears free of major mental health problems . . . .” Tr. 444. The other providers did not
conclude that the three impairments listed by plaintiff were severe enough to prevent him from
engaging in substantial gainful activity. In addition, because the ALJ did find that plaintiff
suffered from severe impairments as to the SSI claim, the failure to find additional severe
impairments at Step 2 is “legally irrelevant” to the overall SSI determination. Anthony v. Astrue,
266 Fed. App’x 451, 457 (6th Cir. 2008).9 In short, the Court finds no reversible error stemming
from the ALJ declining to find the three impairments at issue to be severe.
Rigby found no impairment in Johnson's ability to understand, retain, and follow simple instructions and to sustain
concentration. Further, she observed that Dr. Rigby's examinations revealed no memory problems or psychosis and
that Johnson had normal thought content and orientation. In addition, the ALJ commented on Dr. Potter's findings
that Johnson had intact judgment and insight, normal orientation, no nervousness or dementia, no psychosis, and no
hallucinations . . . . The Claimant also argues that the ALJ failed to consider portions of Dr. Potter's and Dr. Rigby's
findings that indicate the severity of his mental health issues . . . . While Dr. Rigby reported that Johnson suffered
from mild-to-moderate functional depression and moderate impairment to maintain social interactions, he also
stated that Johnson's most limiting conditions appear to be physical in origin and that the anxiety was only a
secondary result. Additionally, Dr. Rigby indicated that the Claimant had no impairment to understand, retain, and
follow simple instructions and could complete tasks in a normal time frame. Moreover, the psychologist noted that
Johnson's social interactions were polite and cooperative and that he appeared to have appropriate social capabilities
for his age and background. The ALJ was permitted to discount the portions of Dr. Rigby's opinion contradicted by
Dr. Potter's and Dr. Perritt's opinions. Further, Dr. Rigby's opinion was internally inconsistent regarding Johnson's
mental health conditions. In addition, the ALJ could discount the opinion because it was based in large part on the
Claimant's self-report. The ALJ properly evaluated Dr. Potter's, Dr. Rigby's, and Dr. Perritt's opinions. Because
substantial evidence supports her finding that Johnson's mental health conditions were non-severe, the ALJ did not
err regarding that issue.”) (quotation marks, citations and paragraph breaks omitted).
The Sixth Circuit held in relevant part in Anthony as follows:
Anthony argues that the ALJ erred by failing to determine that all of Anthony's various
impairments were “severe” at step two. In the Sixth Circuit, the severity determination is a de
minimis hurdle in the disability determination process. [A]n impairment can be considered not
severe only if it is a slight abnormality that minimally affects work ability regardless of age,
education and experience. The goal of the test is to screen out totally groundless claims. . . .
Anthony's argument, however, is misguided. The ALJ specifically found that Anthony's seizure
disorder, cognitive disorder, and the after-effects of his broken leg qualified as severe
impairments. Anthony therefore cleared step two of the analysis. This caused the ALJ to consider
Anthony's severe and nonsevere impairments in the remaining steps of the sequential analysis.
The fact that some of Anthony's impairments were not deemed to be severe at step two is therefore
legally irrelevant. The ALJ, therefore, did not commit reversible err in this regard.
266 Fed. App’x at 457 (citations omitted).
Plaintiff next argues that the ALJ’s RFC determination was improper because it did not
include all of the limitations found by Dr. Pepi Granat, who completed a medical interrogatory in
July 2015. Tr. 509-517. The ALJ generally found the limitations contained in Dr. Granat’s
opinion, such as the weight plaintiff can lift and carry, should be entitled to “great weight, as
they are consistent with the objective medical evidence and are based on a thorough review and
evaluation of the record.” Tr. 20. Plaintiff’s contention in this Court is that the ALJ did not
incorporate all of Dr. Granat’s limitations into the hypothetical asked to the VE, which in turn
means that the ALJ’s RFC is flawed. Specifically, plaintiff argues that the ALJ found in the
RFC that plaintiff needs a sit/stand option at 30-minute intervals which “is inconsistent with Dr.
Granat’s limitations as Dr. Granat found that the claimant is limited to a sit/stand/walk option.”
Doc. 12-1 at 11. In addition, plaintiff argues the ALJ erred by not including into the
RFC/hypothetical to the VE that plaintiff can only walk one to two blocks without using a cane.
Id. at 12.
Plaintiff’s argument regarding the cane is utterly without merit. Dr. Granat checked a
box answering “no” to the question of whether “the individual requires the use of a cane to
ambulate?” Tr. 513. Dr. Granat also checked a box indicating that plaintiff’s usage of a cane
was not medically necessary. Id. Granted, Dr. Granat opined that plaintiff could only walk one
to two blocks without using a cane but also handwrote that plaintiff “prefers to use something” to
ambulate. Id.10 An ALJ is not required to incorporate into a hypothetical to a VE or an RFC
determination a condition which is not medically imperative or necessary, such as plaintiff’s
preference to use a cane. Indeed, when he completed a function report in 2013, plaintiff noted
Unfortunately, the copy of Dr. Granat’s report in the record before the Court does not contain the far-right edge of
Dr. Granat’s handwritten comments. Tr. 513.
that no physician prescribed a cane for him and the he used the cane “if I know that I’ll have to
walk for extended periods of time (for extra stability)[.]” Tr. 269. In that same vein, Dr. Granat
twice checked boxes indicating it was not medically necessary for plaintiff to use a cane to
ambulate. Thus, the ALJ did not err in failing to incorporate plaintiff’s voluntary usage of a cane
into the RFC and/or question to the VE.11 See, e.g., Mitchell v. Comm’r of Soc. Sec., 2014 WL
3738270, at *13 (N.D. Ohio July 29, 2014) (citing numerous cases for the conclusion that “[a]s
there is no medical documentation establishing that Mitchell required the use of a cane and
describing the circumstances when it is needed, the ALJ did not err by omitting the use of a cane
from his hypothetical questions to the vocational expert.”).
Plaintiff’s argument regarding the failure to incorporate a sit/stand/walk option also fails.
Dr. Granat opined by checking boxes on a form that plaintiff could sit/stand/walk for thirty to
sixty minutes at one time without interruption and in an eight-hour workday he could sit a
maximum of four hours, stand a maximum of two hours and walk a maximum of four hours. Tr.
513. Below that, Dr. Grant hand wrote “needs sit/stand/walk option due to variable pain from
. . . spondylosis[.]” Id. In an extremely terse argument, unadorned with a citation to any
supporting cases, plaintiff contends the ALJ’s finding that plaintiff needs a sit/stand option at
thirty-minute intervals “is inconsistent with Dr. Granat’s limitations as Dr. Granat found that the
claimant is limited to a sit/stand/walk option.” Doc. 12-1 at 11. However, the VE specifically
testified on the sit/stand/walk option, stating that “[t]he DOT is silent on the issue of a
sit/stand/walk option; however, I base this on being a rehabilitation specialist for over 30 years
In addition, plaintiff has not shown that the three jobs which the VE concluded plaintiff could perform under the
limitations contained in the hypothetical would require walking more than a block or two without using a cane. In
other words, adding a requirement that plaintiff be permitted to use a cane to walk more than a block or two would
not have facially impacted plaintiff’s ability to perform substantial gainful activity. Moreover, plaintiff’s counsel
did not take advantage of an opportunity to question the VE about the need to use a cane (or the sit/stand/walk
option, which will be discussed in further detail shortly).
and I completed onsite job analyses.” Tr. 50. Plaintiff’s fleeting argument does not explain or
show how adding a sit/stand/walk option would have negatively impacted plaintiff’s overall RFC
or his ability to perform the three jobs the ALJ concluded were available to him. The ALJ did
not commit reversible error.
E. Internally Inconsistent Opinion
Very near the end of his medical interrogatory, Dr. Granat wrote “2010” in response to
the following question: “However, if you have sufficient information to form an opinion within
a reasonable degree of medical probability as to past limitations, on what date were the
limitations you found above first present?” Tr. 517 (emphasis and capitalization omitted). In his
final argument, plaintiff contends the ALJ’s opinion is internally inconsistent because he
explicitly gave great weight to Dr. Granat’s opinion yet failed to find that plaintiff had any
severe impairments as of September 30, 2011 (plaintiff’s date last insured) even though Dr.
Granat found that the limitations were present in 2010.
Plaintiff cites to no authority to support his argument. The Court does find it mildly
curious that the ALJ did not mention Dr. Granat’s statement that plaintiff’s limitations were
present in 2010. However, even if the Court were to leniently assume (solely for purposes of
argument) that the omission was erroneous, the error would be harmless.
Simply put, Dr. Granat did not find that plaintiff’s limitations were disabling. In other
words, though he did note that plaintiff had some impairments and limitations, Dr. Granat did
not opine that plaintiff had any severe, disabling limitations which prevented him from engaging
in substantial gainful activity. To the contrary, the limitations imposed by Dr. Granat were
largely used by the ALJ in the previously discussed hypothetical to the VE, who responded by
noting that there were at least three occupations which plaintiff could perform. If the ALJ had
found that plaintiff had limitations as of 2010, at most the ALJ would have found plaintiff to
have had severe impairments regarding the DIB claim. However, merely finding the presence of
severe impairments would not have changed the overall outcome of the case as, again, plaintiff
has not pointed to evidence showing that he was unable to engage in substantial gainful activity.
Therefore, the Court agrees with the Commissioner that “even if the ALJ had explicitly stated
that the limitations described by Dr. Granat were present back in 2010, and adopted his
limitations for that period, the outcome for plaintiff’s DIB claim would still be the same, i.e., the
ALJ would have found Plaintiff capable of limited light work and, therefore, not disabled.” Doc.
14 at 11.
For the foregoing reasons, IT IS ORDERED:
1. Plaintiff’s motion for summary judgment (doc. 12) is DENIED;
2. The Commissioner’s motion for summary judgment (doc. 14) is GRANTED; and
3. This case is hereby stricken from the Court’s docket.
This, the 18th day of August, 2017
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