Robinson v. Commissioner of Social Security
OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:15-cv-509
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Catherine Robinson seeks review of the Commissioner’s decision
denying her claim for disability insurance benefits (DIB) and supplemental security income (SSI)
under Titles II and XVI of the Social Security Act.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health & Human
Servs., 847 F.2d 301, 303 (6th Cir. 1998). The scope of judicial review in a social security case is
limited to determining whether the Commissioner applied the proper legal standards in making her
decision and whether there exists in the record substantial evidence supporting that decision. See
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may
not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of
credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who
is charged with finding the facts relevant to an application for disability benefits, and her findings
are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever in the record fairly detracts from its weight.
See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was 61 years of age on the date of the Administrative Law Judge’s (ALJ)
decision. (PageID.35, 62.) She successfully completed high school, and was previously employed
as a financial customer service representative. (PageID.64, 86.) Plaintiff applied for benefits on
August 1, 2012, alleging that she had been disabled since June 1, 2010, due to Parkinson’s disease,
arthritis, degenerative disc disease, type II diabetes, hip replacements, heart surgery, aortic valve
replacement, bypass valve replacement, a herniated disc, and high blood pressure. (PageID.94–95,
104–05,182–93.) Plaintiff’s applications were denied on November 30, 2012, after which time she
requested a hearing before an ALJ. (PageID.93, 103, 117–38.) On October 17, 2013, Plaintiff
appeared with her counsel before ALJ Nicholas Ohanesian for an administrative hearing with
testimony being offered by Plaintiff and a vocational expert (VE). (PageID.53–90.) In a written
decision dated November 27, 2013, the ALJ determined that Plaintiff was not disabled.
(PageID.35–52.) On March 26, 2015, the Appeals Council declined to review the ALJ’s decision,
making it the Commissioner’s final decision in the matter. (PageID.24–29.) Plaintiff subsequently
initiated this action under 42 U.S.C. § 405(g).
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
An individual who is working and engaging in substantial gainful activity will not
be found to be “disabled” regardless of medical findings (20 C.F.R. § 404.1520(b));
An individual who does not have a “severe impairment” will not be found “disabled”
(20 C.F.R. § 404.1520(c));
If an individual is not working and is suffering from a severe impairment which
meets the duration requirement and which “meets or equals” a listed impairment in
Appendix 1 of Subpart P of Regulations No. 4, a finding of “disabled” will be made
without consideration of vocational factors (20 C.F.R. § 404.1520(d));
If an individual is capable of performing work he or she has done in the past, a
finding of “not disabled” must be made (20 C.F.R. § 404.1520(e));
If an individual’s impairment is so severe as to preclude the performance of past
work, other factors including age, education, past work experience, and residual
functional capacity must be considered to determine if other work can be performed.
(20 C.F.R. § 404.1520(f)).
The regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment, both are considered in determining
the claimant’s residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.
Plaintiff has the burden of proving the existence and severity of limitations caused
by her impairments and that she is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “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.
ALJ Ohanesian determined Plaintiff’s claim failed at the fourth step of the evaluation.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since June
1, 2010, the alleged disability onset date. (PageID.40.) At step two, the ALJ determined Plaintiff
had the following severe impairments: (1) aortic valve disorder; (2) coronary artery disease; (3)
mitral valve disorder; (4) tricuspid valve disorder; (5) type II diabetes mellitus; (6) hyperlipidemia;
(7) hypertension; (8) obesity; (9) left hip degenerative joint disease status post total arthroplasty;
(10) end state right hip arthritis status post total hip arthroplasty; and (11) degenerative disc disease
of the cervical spine. (PageID.40–42.) At the third step, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that met or equaled the requirements of the Listing
of Impairments. (PageID.42–44.) At the fourth step, the ALJ found that Plaintiff retained the RFC
based on all the impairments:
to perform sedentary work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant can occasionally climb ramps or
stairs; can occasionally climb ladders, ropes or scaffolds, balance,
stoop, kneel, crouch, and crawl. The claimant should avoid
concentrated exposure to extreme cold, extreme heat, humidity, and
hazardous machinery and unprotected heights.
(PageID.44.) Continuing with the fourth step, the ALJ determined that Plaintiff was able to perform
her past relevant work as a financial customer service representative. The ALJ determined that the
work did not exceed the exertional level of the RFC. (PageID.47.) Having made his determination
at step four, the ALJ ended his analysis and entered a finding that Plaintiff had not been under a
disability at any point from June 1, 2010, through November 27, 2013. (PageID.47–48.)
After a review of Plaintiff’s Statement of Errors, the Court finds Plaintiff raises the
following claims of error in her brief:
The ALJ erred at step three in failing to find she met the requirements of
The ALJ failed to consider all of Plaintiff’s impairments;
The ALJ failed to account for Plaintiff’s limitations in concentration,
persistence, and pace in the RFC; and
The ALJ erred at step four in determining Plaintiff could perform her past
(PageID.982–83.) The Court will discuss the issues below.
Plaintiff Failed to Satisfy Her Burden at Step 3.
The Listing of Impairments, detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1,
identifies various impairments which, if present to the severity detailed therein, result in a finding
that the claimant is disabled. At step three of the sequential disability analysis, the ALJ must
determine whether a claimant’s impairments meet or equal a listed impairment. Here, the ALJ
concluded that Plaintiff’s impairments did not meet or medically equal any listed impairment.
(PageID.42–44.) In so doing, the ALJ identified several specific listings, including Listing 1.02.
Plaintiff claims, however, that the ALJ’s analysis regarding Listing 1.02A was so “cursory and
lacking in substantive analysis” that a reviewing Court could not perform a proper judicial analysis.
(PageID.985–86.) The Court disagrees.
First, neither Plaintiff nor her counsel argued to the ALJ either in a pre-hearing brief
or at the hearing that she satisfied the requirements of Listing 1.02. While it is true that counsel
stated Plaintiff “potentially” met Listing 1.02, (PageID.60) the Court finds this equivocal statement
falls short of specifically presenting an argument she met the Listing’s requirement to an ALJ,
especially since it was unaccompanied by any further argument. Indeed, counsel’s argument
centered on claiming that there were no jobs Plaintiff could perform at steps four and five.
(PageID.60.) Thus, this is not a circumstance in which the ALJ failed to address an argument with
which he was specifically presented. See, e.g., Oldenkamp v. Comm’r of Soc. Sec., No. 1:13-CV1303, 2015 WL 505805, at *5 n.2 (W.D. Mich., Feb. 6, 2015) (noting that a relevant issue when
assessing an ALJ’s step three analysis is whether the claimant presented to the ALJ a claim or
argument that he satisfied a particular listing).
In any event, the Sixth Circuit has concluded that the failure by an ALJ to provide
extensive reasoning at step three is not, by itself, grounds for relief. See Forrest v. Comm’r of Soc.
Sec., 591 F. App’x 359, 365 (6th Cir. 2014) (“we decline Forrest’s invitation to extend Wilson to
require remand when the ALJ provides minimal reasoning at step three of the five-step inquiry,
especially where [the Plaintiff] did not argue at the hearing that he met a particular listing”). As the
Forrest court further observed, the ALJ’s failure to provide detailed analysis at step three is no basis
for relief if the ALJ “made sufficient factual findings elsewhere in his decision to support his
conclusion at step three.” Id. at 366. There is “no need to require the ALJ to spell out every fact
a second time.” Id. Here, the ALJ discussed the medical record in detail and articulated ample
support for his determination that Plaintiff did not satisfy Section 1.02. (PageID.44–47.). While the
decision may not be organized as Plaintiff would prefer, such is not a basis for disturbing the ALJ’s
Furthermore, the Forrest court recognized that any error with respect to the ALJ’s
step three analysis is harmless unless a claimant can establish that she satisfied the listing in
question. Id. The medical record in this case belies any argument by Plaintiff that she satisfies the
listing. Section 1.02 of the Listing of Impairments provides in relevant part:
Major dysfunction of a joint(s) (due to any cause): Characterized by
gross anatomical deformity ... and chronic joint pain and stiffness
with signs of limitation of motion or other abnormal motion of the
affected joint(s), and findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or ankylosis of
the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e .,
hip, knee, or ankle), resulting in inability to ambulate effectively, as
defined in 1.00B2b;
20 C.F.R., Part 404, Subpart P, Appendix 1 § 1.02.
Plaintiff bears the burden to demonstrate that
she satisfies a Listing. See Kirby v. Comm’r of Soc. Sec., 2002 WL 1315617 at *1 (6th Cir. June 14,
2002). A review of the medical record reveals that Plaintiff cannot meet this burden.
The record shows that Plaintiff underwent a total left hip arthroplasty2 on January 18,
2012 after being diagnosed with end stage arthritis of the left hip. (PageID.358–61.) The surgery
apparently took place without complications, and on February 1, 2012, Plaintiff’s pain and
functional use were improving after the surgery. Plaintiff used a walker as a walking aide.
That is, a hip replacement surgery. Hip Replacement, MAYO CLINIC (Apr. 29, 2014),
(PageID.588.) On March 6, 2012, she was described as doing “reasonably well.” Her left hip was
not irritable, but her right hip was “quite painful on range” of motion. That hip was also indicative
of end-stage arthritis, and additionally had a hip flexion contracture. (PageID.393.) Plaintiff
subsequently underwent surgery to replace this hip. (PageID.393, 590.) On April 27, 2012,
Plaintiff’s pain and functional use was improving after surgery. She again used a walker as a
walking aid, and was weight bearing up to thirty pounds. (PageID.598–99.) On May 24, 2012,
Plaintiff reported continued improvement. She had increased her weight bearing to full while using
her walker. Her hip was stable and had a good range of motion. Plaintiff stated she had no
complaints of pain, was happy with her progress, and inquired into beginning physical therapy.
Plaintiff apparently continued to improve until a July 3, 2012, checkup. There,
Plaintiff noted she had been in a car accident in June, and that her left hip felt “crackly.”
(PageID.516.) On July 12, 2012, Plaintiff stated that while her right hip was not bothering her, there
was pain in her left leg, although on the day of the exam, neither hip was “overly irritable.”
(PageID.603–04.) On August 24, 2012, her right hip had a good range of motion and strength.
Plaintiff still experienced pain in her left leg, and an MRI was ordered. (PageID.605.) But on
September 18, 2012, Plaintiff stated that she didn’t follow up on the MRI because the pain had
resolved. (PageID.607.) She also stated she had fallen two or three times in the last week, and
complained of pain when raising her legs or trying to climb stairs. During that visit, however,
Plaintiff stated she was not in pain. (PageID.607.) On exam, both hips had a “good range of
motion” and no corresponding pain. (PageID.607.) Plaintiff was described as ambulating with a
limp and using a cane, and was advised to go back to using the walker for stability. (PageID.608.)
This was emphasized on September 20, 2012, when Plaintiff was told to use a walker “at all times.”
(PageID.843.) Plaintiff was referred to physical therapy for a gait analysis and hip strengthening.
While there are not many notes from this therapy, it appears that Plaintiff
experienced great improvement. At the beginning of therapy, a note described Plaintiff has having
difficulty walking with a cane in her left hand. (PageID.629.) Her right hip had a flexion of 4+ and
her left hip had flexion of 4-. She had “very weak gluteal muscles” which were “causing difficulty
with gait and loss of balance.” (PageID.629.) By October 9, 2012, Plaintiff had no pain and desired
to defer any further evaluation. (PageID.611–12.) By November 6, 2012, Plaintiff was “doing
well.” Walking was improved and Plaintiff was walking without a cane around her house.
(PageID.619.) On January 7, 2013, less than a year since her first hip replacement, Plaintiff was
described as “ambulatory and able to get on the exam table without assistance.” (PageID.861.)
After a review of the above, the Court concludes substantial evidence supports the
ALJ’s decision that Plaintiff did not satisfy the requirements of any listing. After surgery, Plaintiff
had good range of motion in both hips. Moreover, the above does not support a conclusion that
Plaintiff is unable to ambulate effectively. While it is certainly true that Plaintiff used a walker for
a time after her surgery–as one would expect–it also appears Plaintiff transitioned away from the
walker to the use of a cane and, thereafter used it only occasionally. Less than a year after her first
surgery, Plaintiff was able to ambulate and get on an exam table without assistance. For these
reasons, Plaintiff cannot demonstrate she meets Listing 1.02.
Plaintiff makes two additional arguments, none of which the Court finds persuasive.
Plaintiff first argues the ALJ never considered her end stage arthritis of the right hip. (PageID.987.)
The Court finds, however, the ALJ provided “sufficient factual findings” elsewhere in the opinion
regarding the right hip. See Forrest, 591 F. App’x at 366. The ALJ provided a detailed evaluation
of both surgeries in his decision. (PageID.46.) And as the ALJ noted, Plaintiff’s surgeries “were
successful at alleviating pain.” (PageID.46.) Moreover, as noted in the above discussion of the
medical evidence, Plaintiff’s complaints regarding her right hip after surgery generally related to her
left hip, with only minimal complaints regarding the right. Accordingly this argument is rejected.
Plaintiff next claims the ALJ erred in failing to properly discuss whether she equaled
a listing. Plaintiff’s argument consists of one conclusory sentence. (PageID.986.) Statements such
a this, which fail to cite any supporting legal authority do not suffice to bring a reviewable claim.
“‘Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument
in the most skeletal way, leaving the court to . . . put flesh on its bones.’” United States v. Stewart,
628 F.3d 246, 256 (6th Cir. 2010) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.
1997)); see United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996); accord Curler v. Comm’r
of Soc. Sec., 561 F. App’x 464, 475 (6th Cir. 2014) (“[Plaintiff develops no argument to support a
remand, and thus the request is waived.”). Even if Plaintiff had not waived this argument it would
have failed. Plaintiff made no argument either at the hearing, or in her brief, that her impairments
should be found equivalent to a listing. The claimant has a far less compelling claim where she
presents no argument that she met or equaled the requirements of specific listings, then argues on
appeal, with the benefit of hindsight, that the ALJ’s opinion did not include a sufficiently detailed
discussion of the most “closely analogous” listed impairments. See Morris v. Barnhardt, 223 F.
App’x 465, 469 (6th Cir. 2007). For all the above reasons, Plaintiff’s first claim of error is rejected.
The ALJ Provided an Inadequate RFC Discussion.
RFC is a medical assessment of what an individual can do in a work setting in spite
of functional limitations and environmental restrictions imposed by all of her medically
determinable impairments. 20 C.F.R. § 404.1545. It is “the maximum degree to which the
individual retains the capacity for sustained performance of the physical-mental requirements of
jobs” on a regular and continuing basis. 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c). The
ALJ’s opinion clearly stated that he understood his obligation to “consider all of the claimant’s
impairments, including impairments that are not severe.” (PageID.40.) Nonetheless, Plaintiff claims
the ALJ failed to consider her lumbar and cervical degenerative disc disease impairments, hand
tremors, and need for a cane.
Plaintiff presents evidence that she underwent a semi-hemilaminectomy at L4-5 on
her lumbar spine on December 30. (PageID.448.) An X-Ray taken after Plaintiff complained of leg
pain on August 24, 2012 revealed that there was “quite a bit of lumbar spondylosis evident.”
(PageID.605.) A subsequent MRI found a recent compression fracture at L1, mild degenerative
spondylolisthesis at L4-5, with moderate spinal stenosis, and moderate degenerative spinal stenosis
at L3-L4. (PageID.614.) Plaintiff claims that while the ALJ may have discussed the results of the
MRI, he gave no serious discussion or consideration to this impairment.
The fact that the MRI showed “multilevel stenosis” and “foraminal encroachment”
(PageID.611), however does not establish the extent of limitations, if any, caused by that condition.
See McKenzie v. Comm’r of Soc Sec., No. 99–3400, 2000 WL 687680, at *5 (6th Cir. May 19, 2000)
(“the mere diagnosis of an impairment does not render an individual disabled nor does it reveal
anything about the limitations, if any, it imposes upon an individual”) (citing Foster v. Bowen, 853
F.2d 488, 489 (6th Cir. 1988)). Plaintiff had the burden of showing specifically how her lumbar
spine condition, in combination with other impairments, limited her ability to a degree inconsistent
with the ALJ’s RFC determination. As all Plaintiff has done is show evidence of a condition, the
Court finds Plaintiff has failed to satisfy her burden here.
The ALJ found that Plaintiff suffered from a severe impairment of degenerative disc
disease of the cervical spine and reviewed this condition under Listing 1.04. (PageID.40, 43.)
Plaintiff contends that the ALJ failed to acknowledge the seriousness of this condition in the RFC
by failing to impose any upper extremity or neck motion restrictions and further erred in failing to
provide any “serious discussion or consideration” of the impairment. (PageID.986–87.) In support
of her claim, Plaintiff refers to two treatment notes by Dr. Krisi Demock in August and September
of 2013, and an October 25, 2013 whole body assessment by Ms. Lynda Jansen, an assessment
specialist at Northern Physical Therapy.
At an August 5, 2013, visit with Dr. Kristi Demock, Plaintiff complained of neck
pain. (PageID.638.) Plaintiff stated she had undergone two surgeries on her cervical spine, one in
the 1980s and one in the 2000s, and that while she experienced relief from the first surgery, the
second surgery had not helped. (PageID.638.) Plaintiff stated that her neck pain radiated to her
arms, affecting the right side more. Plaintiff also reported that the pain caused headaches and that
the pain was affecting her sleep. On exam, Plaintiff had a decreased range of motion of the cervical
spine, both to the left and right. (PageID.641.) She also had a positive Spurling’s test.3 Dr. Demock
A positive Spurling’s test suggests the presence of a cervical nerve root disorder. Thomas
W. Woodward, M.D., and Thomas M. Best, M.D., Ph.D., The Painful Shoulder: Part I Clinical
discussed treatment options with the Plaintiff. She noted that since the second surgery was not
successful, she doubted a third would be. The remaining options included physical therapy, pain
injections, and medication. Plaintiff was started on Cymbalta. (PageID.641–42.) On September
5, 2013, Plaintiff stated her neck pain, as well as her back and left hip pain, had improved since
starting Cymbalta, but she still could not drive, nor could she turn her head due to pain.
(PageID.653.) Plaintiff further stated that sitting for more than an hour would cause neck pain that
would radiate down her right arm.
Plaintiff was advised to discontinue over the counter
medications, and instead was prescribed Neurontin in addition to the Cymbalta. (PageID.656–57.)
On October 25, 2013, Plaintiff underwent a whole body assessment at Northern Physical Therapy.
Plaintiff “reported or demonstrated” a severely restricted range of motion regarding her neck and
head on forward flexion, extension, right and left lateral flexion, and right and left rotation. During
the exam, Plaintiff stated she experienced “sharp pains going right up the back of [her] neck” and
that she was “starting to get a headache.” (PageID.975.) Ms. Jansen concluded that Plaintiff could
never flex or rotate her head and neck. (PageID.972.). Plaintiff argues the ALJ was required to
include limitations regarding the movement of her head and neck in the RFC.
In his RFC discussion, the ALJ did not discuss any of the above records from Dr.
Demock, and gave only little weight to the assessment by Ms. Jansen after a short recitation of the
specialist’s findings. The ALJ gave “great weight” to the opinion of Dr. Shahida Mohiuddin, M.D.,
a state agency physician who opined that Plaintiff had the RFC to stand and walk for two hours and
sit for six hours with occasional postural limitations in the workday. (PageID.110–11.) The ALJ
noted as an agency physician, Dr. Mohiuddin was a trained health professional and familiar with the
Evaluation, A MERICAN F AMILY P HYSICIAN ,
disability process. He also noted her opinion was consistent with the RFC. Finally, the ALJ noted
that Dr. Mohiuddin had reviewed the entire record. (PageID.46.) As the Plaintiff argues, and the
Commissioner concedes, however, the ALJ erred by stating Dr. Mohiuddin had reviewed the entire
record. As the record makes clear, there are additional records dated through October 2013 that Dr.
Mohiuddin did not review.
This situation calls for a meaningful explanation by the ALJ so that this Court can
assess the ALJ’s determination that Dr. Mohiuddin’s opinions are consistent with, and supported
by, the record as a whole. It was, of course, not in error for the ALJ to give greater weight to Dr.
Mohiuddin’s opinion over that of Ms. Jansen who, as a physical therapist, was not an acceptable
source. See 20 C.F.R. §§ 404.1513(d), 416.913(d). However, there must be “some indication that
the ALJ at least considered [the evidence not considered by Dr. Mohiuddin] before giving greater
weight to an opinion that is not ‘based on a review of a complete case record.’” Blakley v. Comm’r
of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009). The Court concludes the ALJ did not provide such
an indication here. Indeed the ALJ’s incorrect statement that Dr. Mohiuddin had reviewed the entire
record points the other way.
The Court finds that the ALJ’s decision does not provide a coherent discussion of
Plaintiff’s medical history subsequent to the initial denial of Plaintiff’s claim in November 2012.
The Commissioner must provide a statement of evidence and reasons on which the decision is based.
See 42 U.S.C. § 405(b)(1). While it is unnecessary for the ALJ to address every piece of medical
evidence, see Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534–35 (6th Cir. 2001), an ALJ “must
articulate, at some minimum level, his analysis of the evidence to allow the appellate court to trace
the path of his reasoning.” Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995). “It is more than merely
‘helpful’ for the ALJ to articulate reasons . . . for crediting or rejecting particular sources of
evidence. It is absolutely essential for meaningful appellate review.” Hurst v. Sec’y of Health &
Human Servs., 753 F.2d 517, 519 (6th Cir. 1985) (quoting Zblewski v. Schweiker, 732 F.2d 75, 78
(7th Cir. 1984)). Here, the ALJ has failed to articulate an analysis of the evidence sufficient to
allow a meaningful appellate review.
The Commissioner argues that the ALJ was entitled to rely on Dr. Mohiuddin’s
opinion not withstanding his error in claiming the doctor had reviewed the entire record.
Additionally the Commissioner states any error is harmless, as Ms. Jansen found Plaintiff could sit
at a computer for an hour without experiencing pain and such is indicative of being able to return
to her past work. (1013–14.) The Court is not persuaded, however, as neither consideration changes
the Court’s conclusion that the ALJ failed to articulate a sufficient analysis necessary for judicial
review. Accordingly this matter will be reversed and remanded pursuant to sentence four of 42
U.S.C. § 405(g). On remand, the Commissioner should re-evaluate the medical evidence, setting
forth Plaintiff’s medical history that includes the evidence after the initial denial of Plaintiff’s claim,
and explaining the medical evidence which supports his decision.
Plaintiff claims that the ALJ failed to include functional limitations regarding her
hand tremors. (PageID.987–88.) Plaintiff points to two records, dated September 19, 2012, and
January 7, 2013, in which Plaintiff’s physicians noted Plaintiff had “notable tremors” in her arms
and “some tremors” in her hands. (PageID.607, 861.) Plaintiff also points to the opinion from Ms.
Jansen of Northern Physical Therapy, that stated Plaintiff could only minimally to occasionally use
her hands for grasping. (PageID.972.) As regards the two treatment notes, Plaintiff’s claim suffers
from the same flaw as her argument regarding her lumbar spine--the diagnosis of a condition says
nothing about functional limitations. McKenzi, 2000 WL 587680, at *5; see, e.g., Higgs v. Bowen,
880 F.2d 860, 863 (6th Cir. 1988) (“[t]he mere diagnosis of arthritis, of course, says nothing about
the severity of the condition”); Foster, 853 F.2d at 489 (a claimant diagnosed as suffering from
dysthymic disorder must establish that the condition is disabling). Moreover, an ALJ is not required
to discuss every treatment record. Daniels v. Comm’r of Soc. Sec., 152 F. App’x 485, 489 (6th Cir.
2005) (“an ALJ is not required to discuss all the evidence submitted, and an ALJ’s failure to cite
specific evidence does not indicate that it was not considered”). Thus these records do not help
satisfy Plaintiff’s burden.
Finally, as noted above, Ms. Jansen is not an acceptable source. Only “acceptable
medical sources” can: (1) provide evidence establishing the existence of a medically determinable
impairment; (2) provide a medical opinion; and (3) be considered a treating source whose medical
opinion could be entitled to controlling weight under the treating physician rule. See SSR 06-3p,
2006 WL 2329939, at *1 (Aug. 9, 2006); see also Hickox v. Comm’r of Soc. Sec., No. 1:09-cv-343,
2011 WL 6000829, at *4 (W.D. Mich. Nov. 30, 2011). As an opinion from a physical therapy
specialist, Ms. Jansen qualifies as an “other source.” As such, the ALJ was only required to
“consider” this evidence. SSR 06-3p, 2006 WL 2329939, at *2, 6. This is not a demanding
standard, and it was easily met here. Having found no error, Plaintiff’s argument is rejected.
Finally, Plaintiff argues that it was “uncontradicted” that Plaintiff needed to use a
cane to ambulate, and that the ALJ erred in failing to include a requirement stating as much in the
RFC. (PageID.988.) The record does not support Plaintiff’s claim.
SSR 96-9p governs under what circumstances an ALJ is required to include a
limitation for a hand-held assistive device, such as a cane. In relevant part the ruling states:
To find that a hand-held assistive device is medically required, there
must be medical documentation establishing the need for a hand-held
assistive device to aid in walking or standing, and describing the
circumstances for which it is needed (i.e., whether all the time,
periodically, or only in certain situations; distance and terrain; and
any other relevant information). The adjudicator must always
consider the particular facts of a case. For example, if a medically
required hand-held assistive device is needed only for prolonged
ambulation, walking on uneven terrain, or ascending or descending
slopes, the unskilled sedentary occupational base will not ordinarily
be significantly eroded.
SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996). The evidence provided by Plaintiff does not
demonstrate that a cane is medically required.
Plaintiff first points to a treatment record dated November 1, 2011, a date before
Plaintiff’s hip replacement surgeries. (PageID.576.) There, Dr. Bielema stated it was his
“suggestion” that Plaintiff used a cane. But Dr. Bielema did not state it was required. Moreover,
because the note predates Plaintiff’s surgeries, it does not describe Plaintiff’s condition after the hip
replacements, and is accordingly of little value for present purposes. The other notes relied on by
Plaintiff merely refer to observations that Plaintiff was using a cane, and do nothing to show that it
was medically required. (PageID.607, 623, 629, 842.) Indeed, some records note that Plaintiff
walked around at home without a cane, or only “occasionally” used a cane. (PageID.623, 653.)
Plaintiff claimed in her function report that she was prescribed a cane in January 2012, but does not
cite to that prescription, nor can the Court find one. (PageID.233.) Based on the above, the Court
finds that the record does not contain substantial evidence demonstrating a need for an assistive
device, and accordingly the ALJ had no need to account for the use of a cane.
The ALJ Did Not Err in Addressing Plaintiff’s Mental Limitations.
The ALJ concluded that Plaintiff had a “mild” limitation in concentration,
persistence, or pace. (PageID.41.) Relying on this finding, Plaintiff claims the ALJ erred in failing
to account for this limitation in the RFC. (PageID.988–90.) The Court disagrees.
The ALJ made this finding at step two of the sequential evaluation when he
considered whether Plaintiff’s affective disorder met the “paragraph B” requirements of various
listed mental impairments. (PageID.41). This finding was not the RFC finding made at step four
of the evaluation. See Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014) (RFC is
determined at step four of the sequential evaluation); 20 CFR Pt. 404, Subpt. P, App. 1, 12.00.A.
(“RFC is a multidimensional description of the work-related abilities you retain in spite of your
medical impairments. An assessment of your RFC complements the functional evaluation necessary
for paragraphs B and C of the listings by requiring consideration of an expanded list of work-related
capacities that may be affected by mental disorders when your impairment(s) is severe but neither
meets nor is equivalent in severity to a listed mental disorder”). As the court explained in Pinkard
v. Comm’r of Soc. Sec., No. 1:13–cv–1339, 2014 WL 3389206 (N.D. Ohio July 9, 2014):
Plaintiff argues that the ALJ erred in concluding that Plaintiff had
moderate difficulties in concentration, persistence, and pace, while
failing to include an appropriate limitation for these difficulties in the
RFC findings . . . Plaintiff refers to the ALJ’s paragraph B findings
in his evaluation of Plaintiff’s depression under 12.04 of the listing
of impairments [ ]. 20 C.F.R. pt. 404, subpt. P, app. 1 Sections 12.04,
12.05, 12.06. However, the ALJ does not have to include paragraph
B finding[s] in his RFC finding. Paragraph B findings under the
listings are findings at step three of the sequential evaluation process,
and are not RFC findings pertaining to steps four and five of the
sequential evaluation process. 20 C.F.R. pt. 404, subpt. P, app. 1,
Section 12.00. Hence, the ALJ was correct in finding that Plaintiff
had moderate limitations in evaluating her mental impairment under
the listings at step three of the sequential evaluation process, and in
not including a “moderate limitation in concentration, persistence,
and pace” in his residual functional capacity finding at steps four and
Pinkard, 2014 WL 3389206 at *10. Finally, the ALJ did in fact state that the RFC reflected “the
degree of limitation” he found in the above analysis. (PageID.42.) This claim of error should be
Plaintiff Failed to Preserve Her Step Four Claim.
At step four, the ALJ determined that Plaintiff was capable of returning to her past
relevant work as she actually performed it.4 (PageID.47.) As noted above, the ALJ found that
Plaintiff had the RFC for sedentary work. Such work “involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” See
20 C.FR. §§ 404.1567(b), 416.967(b). At the hearing, Plaintiff testified that at her past work as a
financial customer service representative, she did not have to lift anything over ten pounds, which
would be consistent with her RFC. (PageID.65.) Plaintiff notes, however, that on a work function
report, she reported that while she frequently lifted less than ten pounds, the heaviest weight she
lifted was thirty to forty pound bags of money. (PageID.219.) On appeal, Plaintiff objects to the
VE’s opinion that she could return to her past relevant work because the inconsistency regarding the
weight lifted had not been resolved. (PageID.990–91.) The Court disagrees.
Plaintiff’s objections were not preserved at the administrative level. The ALJ asked
Plaintiff’s counsel whether he had any questions for the VE, and counsel responded that he did not.
(PageID.88.) “The Sixth Circuit, along with other courts across the country, have generally
In this, the ALJ relied on the VE’s testimony. See 20 C.F.R. § 404.1560(b)(2) (“A
vocational expert or specialist may offer relevant evidence within his or her expertise or knowledge
concerning the physical and mental demands of a claimant’s past relevant work, either as the
claimant actually performed it or as generally performed in the national economy.”)
recognized that a claimant’s failure to object to testimony offered by a vocational expert, at the time
of the administrative proceeding, waives the claimant’s right to raise such issues in the district
court.” Harris v. Comm’r of Soc. Sec., No. 1:11–cv–1290, 2012 WL 4434078 at 3 (N.D. Ohio, Sept.
24, 2012), citing Hammond v. Chater, No. 96–3755, 1997 WL 338719 at *3 (6th Cir. June 18, 1997)
(finding the plaintiff’s failure to raise objections to the VE’s testimony waived the argument on
appeal). See also Bechtold v. Massanari, 152 F. Supp. 2d 1340, 1347 (M.D. Fla. 2001) (“[Claimant],
when squarely presented with an opportunity to object to the characterization by the administrative
law judge of the nature of her past relevant employment, failed to do so. Such failure constitutes a
waiver of her right to raise the argument before this Court at this time.”); cf. McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (stating that “counsel may not now complain” about
the substance of the VE’s testimony “because he failed to cross examine [the VE] when he had an
opportunity to do so” at the administrative hearing). The Court finds Plaintiff has waived this claim.
Remand is Appropriate.
While the Court finds that the ALJ’s decision fails to comply with the relevant legal
standards, Plaintiff can be awarded benefits only if “all essential factual issues have been resolved”
and “the record adequately establishes [his] entitlement to benefits.” Faucher v. Sec’y of Health &
Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also, Brooks v. Comm’r of Soc. Sec., 531 F.
App’x 636, 644 (6th Cir. 2013). This latter requirement is satisfied “where the proof of disability
is overwhelming or where proof of disability is strong and evidence to the contrary is lacking.”
Faucher, 17 F.3d at 176; see also, Brooks, 531 F. App’x at 644. This case is being remanded
because the ALJ failed to adequately articulate his analysis, not because there is compelling
evidence that Plaintiff is disabled. Accordingly, this matter must be remanded for further
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is not supported by substantial evidence. Accordingly, the Commissioner’s decision is REVERSED
and this matter is REMANDED for further factual proceedings under sentence four of 42 U.S.C.
§ 405(g). On remand, the Commissioner should re-evaluate the medical evidence, setting forth
Plaintiff’s medical history that includes the evidence after the initial denial of Plaintiff’s claim, and
explaining the medical evidence that supports his decision.
Dated: June 2, 2016
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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