Beauerle v. Commissioner of Social Security

Filing 22

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 9/24/2024. The final decision of the Commissioner is AFFIRMED. A final judgment will be entered separately. cc: counsel (KDY)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:23-CV-00404-CHL
DIANE B.,1

Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY,2

Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is the Complaint filed by Plaintiff, Diane B. (“Claimant”). Claimant seeks
judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”).
(DN 1.) Claimant and the Commissioner each filed a Fact and Law Summary and/or supporting
brief. (DNs 17, 18, 19.) Claimant did not file a reply, and her time to do so has expired. (DN 15.)
The Parties have consented to the jurisdiction of a Magistrate Judge to enter judgment in this case
with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed. (DN 14.)
Therefore, this matter is ripe for review.
For the reasons set forth below, the final decision of the Commissioner is AFFIRMED.
I.

BACKGROUND
On or about December 3, 2019, Claimant filed an application for disability insurance

benefits (“DIB”) alleging disability beginning on January 1, 2017.3 (R. at 29, 70-71, 82, 84, 103,
22-26.) On November 9, 2021, Administrative Law Judge (“ALJ”) Michael E. Finnie (“the ALJ”)

1

Pursuant to General Order 23-02, the Plaintiff in this case is identified and referenced solely by first name and last
initial.
2
As Martin O’Malley is now the Commissioner of Social Security in place of Kilolo Kijakazi, he is automatically
substituted as the Defendant in this matter pursuant to Fed. R. Civ. P. 25(d). The Clerk is directed to change the case
caption to reflect the substitution.
3
Though the ALJ consistently referenced a January 1, 2017, alleged onset date, several other places in the record note
a June 1, 2017, alleged onset date. (Compare R. at 29, 48, with id. at 71, 84, 222, 225.) Because the ALJ used the
earlier of the two possible dates and because the onset date is not material to the arguments raised by Claimant, the
conflict is not pertinent to the Court’s analysis.

conducted a hearing on Claimant’s application. (Id. at 45-69.) In a decision dated December 15,
2021, the ALJ engaged in the five-step sequential evaluation process promulgated by the
Commissioner to determine whether an individual is disabled. (Id. at 26-44.) In doing so, the ALJ
made the following findings:
1.

The claimant last met the insured status requirements of the Social Security
Act on September 30, 2021. (Id. at 32.)

2.

The claimant did not engage in substantial gainful activity during the period
from her alleged onset date of January 1, 2017, through her date last insured
of September 30, 2021. (Id.)

3.

Through the date last insured, the claimant had the following severe
impairments: coronary artery disease, status post angioplasty; hepatic
steatosis of the liver; pancreatic tumor, post pancreatectomy and
splenectomy; and osteoarthritis. (Id.)

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
(Id. at 34.)

5.

[T]hrough the date last insured, the claimant had the residual functional
capacity to perform less than a full range of light work as defined in 20 CFR
404.1567(b) in that she could lift and carry 20 pounds occasionally and 10
pounds frequently; stand and walk for six hours of an eight-hour workday;
sit for six hours of an eight-hour workday; perform no climbing of ladders,
ropes, or scaffolds; frequently handle, finger, and feel with her bilateral
upper extremities; and had to avoid all exposure to hazardous moving
machinery and unprotected heights. (Id. at 35.)

6.

Through the date last insured, the claimant was capable of performing past
relevant work as a financial manager. This work did not require the
performance of work-related activities precluded by the claimant’s residual
functional capacity. (Id. at 39.)

7.

The claimant was not under a disability, as defined in the Social Security
Act, at any time from January 1, 2017, the alleged onset date, through
September 30, 2021, the date last insured. (Id.)

Claimant subsequently requested an appeal to the Appeals Council, which denied her
request for review on February 2, 2023. (Id. at 15-20, 219-21, 344-46.) At that point, the ALJ’s
2

decision became the final decision of the Commissioner. See 20 C.F.R. § 422.210(a) (2023); see
also 42 U.S.C. § 405(h) (discussing finality of the Commissioner’s decision). Pursuant to 20
C.F.R. § 422.210(c), Claimant is presumed to have received that decision five days later. 20 C.F.R.
§ 422.210(c). Claimant requested and was granted an extension of time to file a civil action
through August 21, 2023. (R. at 1-6.) Accordingly, Claimant timely filed this action on August
3, 2023. (DN 1.).
II.

DISCUSSION
The Social Security Act authorizes payments of DIB to persons with disabilities. See 42

U.S.C. §§ 401-434. An individual shall be considered “disabled” if he or she is unable “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 [twelve] months.” 42 U.S.C. § 423(d)(1)(A); see also 20
C.F.R. § 404.1505(a) (2023).
A.

Standard of Review

The Court may review the final decision of the Commissioner but that review is limited to
whether the Commissioner’s findings are supported by “substantial evidence” and whether the
Commissioner applied the correct legal standards. 42 U.S.C. § 405(g); Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997). “Substantial evidence” means “more than a mere scintilla”; it means
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court must “affirm the Commissioner’s
decision if it is based on substantial evidence, even if substantial evidence would also have
supported the opposite conclusion.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 374 (6th Cir.
2013); see Smith v. Sec’y of Health & Hum. Servs., 893 F.2d 106, 108 (6th Cir. 1989) (holding that

3

if the court determines the ALJ’s decision is supported by substantial evidence, the court “may not
even inquire whether the record could support a decision the other way”). However, “failure to
follow agency rules and regulations” constitutes lack of substantial evidence, even where the
Commissioner’s findings can otherwise be justified by evidence in the record. Cole v. Astrue, 661
F.3d 931, 937 (6th Cir. 2011).
B.

Five-Step Sequential Evaluation Process for Evaluating Disability

The Commissioner has promulgated regulations that set forth a five-step sequential
evaluation process that an ALJ must follow in evaluating whether an individual is disabled. 20
C.F.R. § 404.1520 (2023). In summary, the evaluation process proceeds as follows:
(1)

Is the claimant involved in substantial gainful activity? If the answer is
“yes,” the claimant is not disabled. If the answer is “no,” proceed to the
next step.

(2)

Does the claimant have a medically determinable impairment or
combination of impairments that satisfies the duration requirement4 and
significantly limits his or her physical or mental ability to do basic work
activities? If the answer is “no,” the claimant is not disabled. If the answer
is “yes,” proceed to the next step.

(3)

Does the claimant have an impairment that meets or medically equals the
criteria of a listed impairment within 20 C.F.R. Part 404, Subpart P,
Appendix 1? If the answer is “yes,” the claimant is disabled. If the answer
is “no,” proceed to the next step.

(4)

Does the claimant have the residual functional capacity (“RFC”) to return
to his or her past relevant work? If the answer is “yes,” then the claimant is
not disabled. If the answer is “no,” proceed to the next step.

(5)

Does the claimant’s RFC, age, education, and work experience allow him
or her to make an adjustment to other work? If the answer is “yes,” the
claimant is not disabled. If the answer is “no,” the claimant is disabled.

20 C.F.R. § 404.1520(a)(4).

4

To be considered, an impairment must be expected to result in death or have lasted/be expected to last for a
continuous period of at least twelve months. 20 C.F.R. § 404.1509 (2023).

4

The claimant bears the burden of proof with respect to steps one through four. Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). However, the burden shifts to the
Commissioner at step five to prove that other work is available that the claimant is capable of
performing. Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008). The claimant
always retains the burden of proving lack of RFC. Id.; Her v. Comm’r of Soc. Sec., 203 F.3d 388,
392 (6th Cir. 1999).
C.

Claimant’s Contentions
Claimant argued that the “ALJ failed to adequately account for [Claimant]’s mental

limitations in the RFC.” (DN 17, at PageID # 1592.) Specifically, she noted that while the ALJ
found at step 2 that Claimant’s depressive disorder and anxiety disorder were nonsevere, the ALJ
also found that Claimant had mild limitations in some areas of mental functioning. However, she
argued that the ALJ erred at later steps because he neither discussed those impairments nor
included any related limitations in his formulation of her RFC. (DNs 17, 18.)
An ALJ is required to consider both severe and nonsevere impairments in assessing a
claimant’s RFC. See 20 C.F.R. § 404.1545(a)(2) (2023). An ALJ’s RFC finding is the ALJ’s
ultimate determination of what a claimant can still do despite his or her physical and mental
limitations. 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 404.1546(c) (2023). The ALJ bases his or
her determination on all relevant evidence in the case record. 20 C.F.R. §§ 404.1545(a)(1)-(4).
Thus, in making his or her determination of a claimant’s RFC, an ALJ must necessarily evaluate
the persuasiveness of the medical opinions in the record and assess the claimant’s subjective
allegations. 20 C.F.R. §§ 404.1520c, 404.1529 (2023).
Here, at step two, the ALJ noted that Claimant had depressive and anxiety disorder but that
her “mental health symptoms were controlled with the use of [ ] prescription medication . . . and

5

she did not require continuing treatment with a mental health specialist.” (R. at 33 (citing id. at
368-443, 583-89, 610-50, 690-97).) Thus, the ALJ concluded that her mental health impairments
“considered singly and in combination, did not cause more than minimal limitation in the
claimant’s ability to perform basic mental work activities.” (Id.) The ALJ then assessed
Claimant’s mental functioning by reference to the “paragraph B” criteria and found that Claimant
had no limitation in her ability to interact with others and only a mild limitation in her ability to
understand, remember, or apply information; concentrate, persist, or maintain pace; and adapt or
manage herself. (Id. at 33-34.) Then, in his formulation of Claimant’s RFC, the ALJ included no
limitations related to Claimant’s mental impairments. (Id. at 35.) The ALJ specifically noted in
doing so:
In regard to the claimant’s mental functioning, on February 28, 2020, Dr. Bornstein
found the claimant had no more than mild mental limitations. On October 28, 2020,
Dr. Brake made a similar assessment. The undersigned finds the assessments by
Dr. Bornstein and Dr. Brake are persuasive because they are consistent with the
claimant’s limited mental health treatment and reports of the claimant’s activities
of daily living prior to the date last insured.
(Id. at 38 (citations omitted) (citing id. at 70-81, 83-102).)
Claimant proffered a number of district court cases that she claimed supported the notion
that an ALJ’s determination of mild limitations in the paragraph B criteria but failure to discuss
why no mental limitations were imposed in an RFC is a reversible error. See Katona v. Comm’r
of Soc. Sec., No. 14-CV-10417, 2015 WL 871617, at *6 (E.D. Mich. Feb. 27, 2015) (“[A]n ALJ’s
conclusion that an impairment is non-severe is not tantamount to a conclusion that the same
impairment—either singly or in combination with a claimant’s other impairments—does not
impose any work-related restrictions.”); James v. Comm’r of Soc. Sec., No. 1:19 CV 570, 2020
WL 836493, at *10 (N.D. Ohio Feb. 20, 2020) (“Courts have also found, however, that an ALJ’s
failure to explain how a claimant’s mild psychological limitations affect the RFC assessment

6

constitutes reversible error where the ALJ makes no mention of these non-severe mental
impairments in the RFC analysis.”); Workman v. Berryhill, No. CV 7:16-261-DCR, 2017 WL
3880661, at *2-4 (E.D. Ky. Sept. 5, 2017); Fred W. v. Comm’r of Soc. Sec. Admin., No. 2:22-CV2026, 2023 WL 4925301, at *2-6 (S.D. Ohio Aug. 2, 2023), report and recommendation adopted,
No. 2:22-CV-2026, 2023 WL 6319281, at *1 (S.D. Ohio Sept. 27, 2023); Taiwan D. v. Comm’r
of Soc. Sec., No. 2:21-CV-990, 2022 WL 1314434, at *5-7 (S.D. Ohio May 3, 2022), report and
recommendation adopted, No. 2:21-CV-00990, 2022 WL 1630763, at *1 (S.D. Ohio May 23,
2022).
In contrast, the Commissioner urged the Court to apply the rule articulated by the Sixth
Circuit in Emard v. Commissioner of Social Security. Emard v. Comm’r of Soc. Sec., 953 F.3d
844, 851-52 (6th Cir. 2020). In Emard, the Sixth Circuit found that an ALJ had complied with 20
C.F.R. § 416.945(e), which parallels 20 C.F.R. § 404.1545(e) and requires an ALJ to consider the
limiting effects of all of a claimant’s impairments, including any nonsevere ones, in determining
a claimant’s RFC. Id.; 20 C.F.R. § 404.1545(e). The Sixth Circuit noted that “[a]lthough the ALJ
did not specifically discuss the combined effect of Emard’s impairments or mention Emard’s
nonsevere impairments in assessing his residual functional capacity, she stated that she had
carefully considered the entire record and ‘all symptoms’ at this step in the process” and had
“specifically noted in her summary of the applicable law that she was required to comply with
SSR 96-8p’s mandate to ‘consider all of the claimant’s impairments, including impairments that
are not severe.’ ” Emard, 953 F.3d at 851-52. Thus, the Sixth Circuit found no error, relying on
the Emard ALJ’s references to SSR 96-8p and discussion of Emard’s nonsevere impairments at
step two. Id. at 852.

7

District courts interpreting Emard have thus looked to three things in determining whether
an ALJ properly considered all of a claimant’s impairments in determining a claimant’s RFC: “(1)
an ‘express reference to SSR 96-8p’; (2) a ‘discussion of the functional limitations imposed by [a
claimant’s] nonsevere impairments at step two of [the ALJ’s] analysis’; and (3) a ‘subsequent
assurance that [the ALJ] had considered the entire record and all symptoms.’ ” John S. v. Comm’r
of Soc. Sec., No. 2:22-CV-4207, 2023 WL 6141664, at *4 (S.D. Ohio Sept. 20, 2023) (quoting
Thoenen v. Comm’r of Soc. Sec., No. 5:21-CV-1101, 2022 WL 3577414, at *3 (N.D. Ohio Aug.
19, 2022)). “Of course, it is not enough for the ALJ to have simply ‘considered’ the effects of [a
claimant]’s nonsevere impairments; the ALJ must have articulated her rationale well enough for
this Court to understand why she found that Plaintiff’s nonsevere, mental impairments did not
impact her functional abilities.” Lennon v. Comm’r of Soc. Sec., No. 221CV12942TGBPTM, 2022
WL 19518452, at *13 (E.D. Mich. Nov. 8, 2022), report and recommendation rejected in part on
other grounds, No. 221CV12942TGBPTM, 2023 WL 2733382, at *1f (E.D. Mich. Mar. 31, 2023);
Lennon, 2023 WL 2733382, at *5 (rejecting portion of report and recommendation regarding
claimant’s colitis but affirming that ALJ’s discussion of nonsevere impairments was sufficient).
But, “[s]evere or non-severe, an ALJ need only include limitations arising from an impairment
where the impairment affects a claimant’s capacity to work.” Miller v. O’Malley, No. 5:23-CV209-HAI, 2024 WL 315685, at *7 (E.D. Ky. Jan. 26, 2024) (quoting Caudill v. Comm’r of Soc.
Sec., No. 2:16-CV-818, 2017 WL 3587217, at *6 (S.D. Ohio Aug. 21, 2017), report and
recommendation adopted, No. 2:16-CV-818, 2017 WL 4222983 (S.D. Ohio Sept. 21, 2017)).
Applying these principles here, the Court concludes that the ALJ’s discussion was
sufficient to comport with 20 C.F.R. § 404.1545(e) and the requirement that an ALJ consider all
of a claimant’s impairments in formulating that claimant’s RFC, citing 20 C.F.R. §§ 404.1520(e),

8

404.1545 and SSR 96-8p. As in Emard, the ALJ specifically noted in his summary of the
“applicable law” that he was required to consider all of a claimant’s impairments, including
nonsevere impairments, in determining Claimant’s RFC. (R. at 31.) Then, in his step 2 findings,
while he did find that Claimant had mild limitations in some areas, he also emphasized Claimant’s
lack of treatment with a mental health specialist and that “claimant’s mental health symptoms were
controlled with the use of [ ] prescription medication.” (Id. at 33.) Then, in his assessment of
Claimant’s RFC, the ALJ noted that the same was based on “careful consideration of the entire
record” and that he had “considered all symptoms” in making his determination. (Id. at 35-36.)
Then, he found persuasive the opinions of the state agency physicians because the same were
“consistent with the claimant’s limited mental health treatment and reports of claimant’s activities
of daily living prior to the date last insured.” (Id. at 38.) Thus, this is not a case, like the ones
proffered by Claimant, where the ALJ made no analysis whatsoever as to her nonsevere
limitations. See Miller, 2024 WL 315685, at *7; Mary E. O. v. Comm’r of Soc. Sec., No. 3:23CV-00344-CRS, 2024 WL 3876477, at *10 (W.D. Ky. July 24, 2024), report and recommendation
adopted sub nom. Mary O. v. O’Malley, No. 3:23-CV-00344-CRS, 2024 WL 3868249, at *1 (W.D.
Ky. Aug. 19, 2024). All of the ALJ’s discussion evidences that Claimant’s mental health treatment
was limited and her symptoms were controlled by medication, which constitute substantial
evidence for the ALJ not to include any limitations related to Claimant’s mental impairments in
the RFC. Cf. Richardson v. Saul, 511 F. Supp. 3d 791, 799 (E.D. Ky. 2021) (“Certainly, not every
mild or moderate limitation signifies a compromised work ability. The Court simply cannot discern
this because the ALJ did not in any way address the matter. Meaningful review requires more.”).
And notably, Claimant made no attempt in her brief to cite to medical evidence demonstrating that
greater limitations should have been imposed or to argue that the ALJ’s conclusions regarding her

9

limited mental health treatment and the mitigating effects of her medications were not based upon
substantial evidence. In the absence of such an argument and based on the Court’s conclusions
herein about the sufficiency of the ALJ’s discussion, the final decision of the Commissioner will
be affirmed.
III.

ORDER
For the foregoing reasons, the final decision of the Commissioner is AFFIRMED. A final

judgment will be entered separately.

cc:

Counsel of Record
September 24, 2024

10