Froelich v. Commissioner of Social Security

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION 10 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LINDA FROELICH,
Plaintiff,

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v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

No. 1:23-cv-312
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the court on Plaintiff’s objections to the report and
recommendation issued by Judge Green. (ECF No. 12). The court will overrule the objection
and adopt the report and recommendation.
I. Background
Plaintiff brought this action under Section 205(g) of the Social Security Act, 42 U.S.C.
405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s
claim for Disability Insurance Benefits (DIB) under Title II of the Social Security Act.
Section 405(g) limits the court to a review of the administrative record and provides that if
the Commissioner’s decision is supported by substantial evidence, it shall be conclusive.
Judge Green’s report and recommendation concluded that the Commissioner’s decision be
affirmed.
II. Legal Standard
After being served with a report and recommendation issued by a magistrate judge,
a party has fourteen days to file written objections to the proposed findings and

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recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court judge
reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). Only those objections that are specific are entitled to a de
novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam).
III. Analysis
Plaintiff’s objection focuses on the ALJ’s finding that Plaintiff’s spinal condition was
not a “medically determinable impairment.” Plaintiff insists that this finding was contrary to
law. Plaintiff argues that Judge Green’s analysis did not properly assess the difference
between a “determinable medical impairment” and a “non-severe” impairment under the
relevant rules. Judge Green rejected this argument:
Plaintiff next asserts that she is entitled to relief because the ALJ failed
to find that she suffers from a back impairment. At step two of the sequential
disability analysis, the ALJ must determine whether the claimant suffers from
a severe impairment. The Sixth Circuit has held that where the ALJ finds the
presence of a severe impairment at step two and proceeds to continue through
the remaining steps of the analysis, the alleged failure to identify as severe some
other impairment constitutes harmless error so long as the ALJ considered the
entire medical record in rendering his decision. See Maziarz v. Sec’y of Health
and Human Services, 837 F.2d 240, 244 (6th Cir. 1987); Kirkland v.
Commissioner of Social Security, 528 Fed. Appx. 425, 427 (6th Cir., May 22,
2013) (“so long as the ALJ considers all the individual’s impairments, the
failure to find additional severe impairments. . .does not constitute reversible
error”).
Here, the ALJ determined that Plaintiff suffered from severe
impairments at step two of the analysis and continued with the remaining steps
thereof, considering in detail the medical evidence of the record. The record
does not support that Plaintiff suffers from a severe back impairment. More
importantly, even if the Court assumes that Plaintiff does have such an
impairment, the record fails to establish that such limits her to a greater degree
than the ALJ recognized in her RFC assessment.
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Thus, even if it is assumed that the ALJ erred in failing to find that
Plaintiff suffers a severe back impairment, such does not call into question the
substantiality of the evidence supporting the ALJ’s decision. This argument is,
therefore, rejected. See Shinseki v. Sanders, 556 U.S. 396, 407 (2009)
(recognizing that the harmless error doctrine is intended to prevent reviewing
courts from becoming “impregnable citadels of technicality”); Heston v.
Commissioner of Social Security, 245 F.3d 528, 535-36 (6th Cir. 2001)
(recognizing that remand to correct an error committed by the ALJ
unnecessary where such error was harmless); Fisher v. Bowen, 869 F.2d 1055,
1057 (7th Cir. 1989) (“no principle of administrative law or common sense
requires us to remand a case in quest of a perfect opinion unless there is reason
to believe that the remand might lead to a different result”).
(ECF No. 10 at PID 807-08).
The report and recommendation relied upon Maziarz v. Sec’y of Health and Human

Services, 837 F.2d 240 (6th Cir. 1987) and Kirkland v. Commissioner of Social Security, 528
Fed. Appx. 425 (6th Cir., May 22, 2013). Plaintiff attempts to distinguish her case from both.
Plaintiff argues that the issue is whether Plaintiff’s “transitional vertebrae constituted a
medically determinable impairment and then whether it was properly considered when ALJ
Grit determined claimant’s RFC at Step 3.” (ECF No. 12 at PID 816). Plaintiff argues that
even if Plaintiff’s back impairment was not considered a severe impairment, it should have
been considered in the RFC analysis as a non-severe but medically determinable
impairment.1
The ALJ determined that Plaintiff’s “back and knee pain are non-medically
determinable.” (ECF No. 3-2 at PID 29). The ALJ opined that the “record noted
sacralization of left L5 (per old films). However, that is an anatomic variant rather than an

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Despite arguing that Maziarz and Kirkland are distinguishable, Plaintiff does not cite a case to the contrary.
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impairment itself.” (Id.). Only the ALJ can “evaluate the credibility of witnesses, including
that of the claimant.” Rodgers v. Commissioner of Social Security, 486 F.3d 234, 247 (6th
Cir. 2007). The ALJ’s finding comports with what is required to determine whether a
disability exists. See 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be
under a disability unless he furnishes such medical and other evidence of the existence
thereof as the Commissioner of Social Security may require.”); 20 C.F.R. § 404.1521 (“Your
impairment(s) must result from anatomical, physiological, or psychological abnormalities
that can be show by medically acceptable clinical and laboratory diagnostic techniques.”).
Because Plaintiff’s argument hinges on an ALJ error, and this court concludes the ALJ made
no error, Plaintiff’s argument is rejected. This court finds no error in the report and
recommendation.
IV. Conclusion
This court has conducted a review of this matter. Having read the file, including the
report, recommendations and relevant authority, the court adopts the report and
recommendation over the objections.
IT IS HEREBY ORDERED that Plaintiff’s objection (ECF No. 12) is DENIED.
IT IS FURTHER ORDERED that the report and recommendation (ECF No. 10) is
ADOPTED by the court.
IT IS SO ORDERED.
Date: September 24, 2024

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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