RAMSEY v. ASTRUE

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/18/2014; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 7 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be granted, and that this action be dismissed with prejudice. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SALLY HARSHAW RAMSEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.

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1:10CV618

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Sally Harshaw Ramsey, brought this action pursuant
to Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§ 405(g)), to obtain judicial review of a final decision of
Defendant, the Commissioner of Social Security, denying Plaintiff’s
claim for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) under Titles II and XVI of the Social
Security Act (the “Act”).

(See Docket Entry 1.)

The Court has

before it the certified administrative record (cited herein as “Tr.
__”) and the parties have filed cross-motions for judgment (Docket
Entries 7, 11).

For the reasons that follow, the Court should

enter judgment for Defendant.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, resulting in her substitution as Defendant pursuant to Federal
Rule of Civil Procedure 25(d).

PROCEDURAL HISTORY
Plaintiff first applied for DIB and SSI on May 1, 2006,
alleging a disability onset date of April 1, 2005.

(Tr. 156-66.)

Following denial of those applications at the initial level because
Plaintiff’s gainful employment after her onset date disqualified
her for benefits (Tr. 199-200), Plaintiff filed second applications
for DIB and SSI, again alleging a disability onset of April 1, 2005
(Tr. 167-80).

Upon denial of those applications both initially

(Tr. 83-84, 89-100) and on reconsideration (Tr. 85-86, 105-22),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”) (Tr. 123-24).

Plaintiff, her attorney, and a

vocational expert (“VE”) attended the hearing.

(Tr. 33-78.)

ALJ then ruled Plaintiff not disabled under the Act.

The

(Tr. 12-26.)

The Appeals Council thereafter denied Plaintiff’s request for
review, thus making the ALJ’s determination the Commissioner’s
final decision for purposes of judicial review.

(Tr. 1-5.)

In ruling Plaintiff ineligible for disability benefits, the
ALJ made the following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2011.
2.
[Plaintiff] engaged in substantial gainful activity
since April 1, 2005, the alleged onset date . . . [but
not after she] was involved in a motor vehicle accident
on May 15, 2006. . . .
3.
[Plaintiff] has the following severe impairments:
post traumatic stress disorder; bipolar disorder;
2

congestive heart failure; hypertension; obesity
asthma (20 CFR 404.1520(c) and 416.920(c)).

and

. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, 416.926).
. . .
5.
After careful consideration of the entire record,
the undersigned finds that [Plaintiff] has the residual
functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) and 416.967(a), lifting, carrying,
pushing and pulling[] no more than 10 pounds at a time.
[Plaintiff] can sit 6 hours in an 8 hour workday, and
stand and walk 2 hours in an 8 hour workday. She could
kneel, or crawl and stoop or crouch but not climb or
balance. She has no significant visual, manipulative or
communication limitations. An environmental limitation
would be avoidance of respiratory irritants. Due to her
depression and anxiety she is limited to understanding
and carrying out simple, routine, repetitive tasks with
occasional contact with co-workers and no contact with
the public and no work requiring operation of a motor
vehicle.
(Tr. 17-22.)2
In

light

of

the

findings

regarding

residual

functional

capacity (“RFC”), the ALJ determined that Plaintiff could not
perform her past relevant work as a community support provider,
data entry clerk, cashier, and kitchen helper. (Tr. 24.) However,
based on the VE’s testimony, and after considering Plaintiff’s age,
education, work experience, and RFC, the ALJ concluded “there are
2

Because Plaintiff “did not formally amend her onset date, the [ALJ]
consider[ed] [Plaintiff’s] record since the alleged onset date.” (Tr. 17.)

3

jobs that exist in significant numbers in the national economy that
[Plaintiff] can perform.”

(Id.)

Accordingly, the ALJ ruled that

Plaintiff had no “disability,” as defined in the Act, at any time
from her onset date through the date of decision.

(Tr. 26.)

DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).

“The courts

Oppenheim v. Finch, 495 F.2d

Instead, “a reviewing court must uphold

the factual findings of the ALJ [underlying the denial of benefits]
if they are supported by substantial evidence and were reached
through application of the correct legal standard.”

Hines, 453

F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).

“It consists of

more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”

Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted).

4

“If

there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”

Hunter,

993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
In confronting that issue, the Court also must note that “[a]
claimant for disability benefits bears the burden of proving a
disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and
that, in this context, “disability” means the “‘inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for

5

a continuous period of not less than 12 months,’” id. (quoting 42
U.S.C. § 423(d)(1)(A)).3

“To regularize the adjudicative process,

the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical condition.”

Hall, 658 F.2d at 264.

“These regulations

establish a ‘sequential evaluation process’ to determine whether a
claimant is disabled.”

Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the [RFC] to (4) perform [the
claimant’s]

past

work

or

(5)

any

other

work.”

Albright

v.

Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir.
1999).4

A finding adverse to the claimant at any of several points

in the SEP forecloses an award and ends the inquiry.

For example,

3

The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. [SSI] . . . provides benefits to indigent disabled persons. The
statutory definitions and the regulations . . . for determining disability
governing these two programs are, in all aspects relevant here, substantively
identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
4

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

“[t]he first step determines whether the claimant is engaged in
‘substantial

gainful

activity.’

If

the

claimant

is

working,

benefits are denied. The second step determines if the claimant is
‘severely’ disabled.

If not, benefits are denied.”

Bennett v.

Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s [RFC].”

Id. at 179.5

Step four

then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant
does not qualify as disabled.

work”; if so, the claimant

Id. at 179-80.

However, if the

claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
both [the RFC] and [the claimant’s] vocational capabilities (age,

5

“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

7

education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.

If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled.

Hines, 453 F.3d at 567.6

Assignments of Error
The ALJ determined at step one that Plaintiff performed no
substantial gainful activity after May 15, 2006.

(Tr. 17.)

At

step two, the ALJ decided that Plaintiff suffered from six severe
impairments.

(Tr. 17-20.)

The ALJ then concluded at step three

that none of Plaintiff’s impairments met or equaled a listing, but
ruled at step four that her impairments limited her to sedentary
work with further restrictions that precluded a return to her past
relevant work. (Tr. 20-24.) However, at step five, the ALJ found,
based

on

the

VE’s

testimony,

that

Plaintiff

could

available jobs and thus did not qualify as disabled.

do

other

(Tr. 24-26.)

Plaintiff argues that substantial evidence does not support
the ALJ’s findings at steps two through five and/or that the ALJ
incorrectly applied the law at these steps. (Docket Entry 8 at 12-

6

A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).

8

20.)

Specifically, Plaintiff asserts that the ALJ erred by:

(1)

misconstruing the opinion of a treating psychiatrist (id. at 12-13,
14-17);7 (2) failing to find that Plaintiff’s bipolar disorder met
or equaled a listing (id. at 13-14); (3) neglecting to identify
additional severe impairments (id. at 17-18); and (4) ignoring a
state agency consultant’s opinion (id. at 18-19).

Defendant

contends otherwise and urges that substantial evidence supports the
finding of no disability.
1.

(Docket Entry 12 at 6-14.)

Treating Psychiatrist’s Opinion(s)
Plaintiff claims the ALJ erroneously assessed the opinion of

treating psychiatrist, Dr. Robert A. Millet, in that:

(1) “[t]he

ALJ appeared to rely upon notes of Dr. Millet in concluding that
[Plaintiff’s] bipolar disorder had improved . . . [when,] [i]n
fact, Dr. Millet’s statements reflect nothing of the sort” (Docket
Entry 8 at 12); and (2) “[t]he ALJ also put words into the record
when he state[d] that Dr. Millet ‘felt [Plaintiff] had problems
with concentration, persistence and pace, but not to the extent
that she could not perform simple, repetitive, routine tasks’” (id.
at 14).

These contentions lack merit.

As to the first of these matters, Plaintiff focuses on one
particular paragraph from the portion of the ALJ’s decision that
ruled in Plaintiff’s favor by finding that the bipolar disorder
7

Because Plaintiff’s first and third assignments of error both focus on
Dr. Robert A. Millet’s opinion(s), this Recommendation analyzes them together.

9

(for which Dr. Millet treated her) constituted a severe impairment.
(Id. at 12 (citing Tr. 18, ¶ 4).)

Given that the paragraph in

question formed part of the section of the ALJ’s decision in which
the ALJ ruled in Plaintiff’s favor, she should have explained how
any alleged misstatement by the ALJ resulted in any prejudice, see,
e.g., Camp v. Massanari, 22 F. App’x 311, 311 (4th Cir. 2001)
(applying harmless error standard in Social Security benefits
review context and refusing to remand absent showing of prejudice),
but did not (see id. at 12-13).
relief.

That failure warrants denial of

See, e.g., Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146,

152 n.4 (4th Cir. 2012) (“This issue is waived because [the
plaintiff] fails to develop this argument to any extent in its
brief.”); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(“[A] litigant has an obligation to spell out its arguments
squarely and distinctly, or else forever hold its peace.” (internal
quotation marks omitted)); Nickelson v. Astrue, No. 1:07CV783, 2009
WL 2243626, at *2 n.1 (M.D.N.C. July 27, 2009) (unpublished) (“[A]s
[the plaintiff] failed to develop these arguments in his Brief, the
court will not address them.”).
Moreover, in the paragraph of the ALJ’s decision cited by
Plaintiff, the ALJ did not “conclud[e] that Plaintiff’s bipolar
disorder had improved” (Docket Entry 8 at 12); rather, the ALJ
merely accurately recited statements made by Dr. Millet (see Tr.
18).

In particular, consistent with Dr. Millet’s notes, the ALJ
10

reported that, by December 15, 2006, Plaintiff’s bipolar symptoms
had shown “dramatic improvement” (compare Tr. 18, with Tr. 355) and
that, in February 2007, again according to Dr. Millet’s notes,
Plaintiff’s bipolar disorder was “much improved” (compare Tr. 18,
with Tr. 536).

The ALJ did not reversibly err by accurately

setting out Dr. Millet’s exact words, particularly not where the
ALJ did so while agreeing with Plaintiff that her bipolar disorder
qualified as a severe impairment.8
Plaintiff also contends the ALJ incorrectly interpreted Dr.
Millet’s medical source statements as opining that Plaintiff could
do simple, repetitive, routine tasks (“SRRTs”) and that, as a
result, the ALJ adopted an errant RFC.

(Docket Entry 8 at 14-17.)

Plaintiff bases this contention on the ALJ’s statement that, in
October 2009, Dr. Millet indicated Plaintiff “‘had problems with
concentration, persistence and pace, but not to the extent that she
could not perform [SSRTs].’”

(Id. at 14 (quoting Tr. 23).)

According to Plaintiff, Dr. Millet’s contemporaneous finding of
marked impairment in Plaintiff’s ability to complete a normal
workday/week “alone implies” that Dr. Millet believed Plaintiff
lacked the capacity for SRRTs.

(Id. at 14-15 (citing Tr. 914).)

8

Nor did the ALJ omit the other material aspects of Plaintiff’s mental
health history identified in this section of her brief. (Compare Docket Entry
8 at 12-13 (pointing out that (in February 2007) Plaintiff experienced
hospitalization for hallucinating bad smells, that (in April 2007) Plaintiff
complained about weight gain from medication, and that (in 2009) Dr. Millet
reported problems experienced by Plaintiff), with Tr. 19-20 (noting same).)

11

In fact, viewed in totality, Dr. Millet’s findings support the
ALJ’s determination that Plaintiff could carry out SRRTs. (See Tr.
356-59,

913-14.)

Plaintiff

had

no

In

December

significant

2006,

Dr.

impairment

Millet
in

her

stated

that

“ability

to

understand and remember short and simple instructions,” “to carry
out very short and simple instructions,” and “to make simple workrelated decisions.”

(Tr. 357, 359.)

At the same time, Dr. Millet

found only moderate impairment of Plaintiff’s “ability to perform
activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances,” “to sustain an ordinary
routine without special supervision,” as well as “to respond
appropriately to changes in the work setting.”

(Tr. 357, 359.)

Similarly, in October 2009, Dr. Millet assessed no significant
impairment of Plaintiff’s “ability to understand and remember short
and simple instructions” and “to carry out very short and simple
instructions,” as well as only moderate impairment of her “ability
to maintain attention and concentration for extended periods,” “to
perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances,” “to sustain an
ordinary

routine

without

special

supervision,”

“to

work

in

coordination and proximity with others without being distracted,”
“to

make

simple

work-related

decisions,”

appropriately to changes in the work setting.”

12

and

“to

respond

(Tr. 914.)

The foregoing findings mirror Dr. Millet’s treatment notes
which consistently reflect unremarkable mental examinations and
stable

or

medications.

improved

symptoms

when

Plaintiff

complied

(Tr. 355, 533-43, 656, 769, 858-59, 908-12.)

with
Dr.

Millet’s statements and underlying records thus provide substantial
evidence to support the ALJ’s determination that Plaintiff remained
capable of SRRTs.

See, e.g., Adams v. Astrue, No. CV07-1248, 2008

WL 2812835, at *4 (W.D. La. June 30, 2008) (unpublished) (“A
limitation to simple, repetitive, routine tasks adequately captures
deficiencies in concentration, persistence or pace . . . [of] no
more than moderate.” (citing cases from three circuits)).9

9

To the extent conflicts about Plaintiff’s capacity for SRRTs existed in
the reports and records of Dr. Millet, “the ALJ performed his duty to weigh the
evidence, resolve conflicts in the evidence, make findings, and arrive at a
conclusion,” Lewis v. Astrue, No. 5:09CV412-FL, 2009 WL 2579644, at *4 (E.D.N.C.
Aug. 17, 2009) (unpublished). In so doing, the ALJ had no obligation to lend
controlling weight to any opinions of Dr. Millet that Plaintiff could not work.
See Policy Interpretation Ruling Titles II and XIV: Medical Source Opinions on
Issues Reserved to the Commissioner (“SSR 96-5p”), 1996 WL 374183, at *5 (July
2, 1996) (“Medical sources often offer opinions about whether an individual
. . . is ‘disabled’ or ‘unable to work’ . . . . Because these are administrative
findings that may determine whether an individual is disabled, they are reserved
to the Commissioner . . . [and] can never be entitled to controlling weight or
given special significance.”).
Moreover, the fact that the state agency
consultants both concluded that Plaintiff retained the ability to do SRRTs (Tr.
626-43, 742-59) bolsters the view that the ALJ acted within a proper zone of
choice by reaching the same conclusion.
See, e.g., Penick v. Astrue, No.
3:08CV549, 2009 WL 3055446, at *9 (E.D. Va. Sept. 23, 2009) (unpublished) (“An
ALJ is allowed to rely on an RFC assessment by someone such as Dr. Chaplin, based
on his qualifications as a highly qualified state agency consultant, and as an
expert in Social Security disability evaluation.”). Finally, Plaintiff cited no
authority showing that portions of Dr. Millet’s medical source statements
regarding Plaintiff’s problems interacting with others (referenced in this
portion of her brief) would support (much less mandate) a finding that she lacked
the ability to perform SRRTs. (See Docket Entry 8 at 15-17.) That failure looms
particularly large, given that the ALJ expressly addressed such interaction
deficits by including within Plaintiff’s RFC restrictions against more than
occasional contact with co-workers and any contact with the public. (Tr. 22.)

13

2.

Bipolar Listing(s)
Plaintiff also contends that the ALJ erred at step three by

finding that Plaintiff’s “‘impairments d[id] not result in bipolar
syndrome with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes and
currently characterized by either or both syndromes.’”
Entry 8 at 13 (quoting Tr. 20-21).)
ALJ’s

finding

at

step

two

that

(Docket

According to Plaintiff, the

Plaintiff’s

bipolar

disorder

constituted a severe impairment, as well as the bipolar disorder
diagnoses of Dr. Millet and primary care physician Dr. Arthur
Axelbank, contradict the ALJ’s step three ruling.

Plaintiff’s

contentions in this assignment of error fall short.
The ALJ’s above-quoted finding comes from the step three
analysis of whether Plaintiff’s impairments met or equaled a listed
impairment.

(Tr. 20-21.)

More specifically, the ALJ analyzed

whether Plaintiff’s mental impairments met or equaled Listing
12.04, 20 C.F.R. Part 404, Subpt. P, App’x 1, § 12.04, or Listing
12.06, 20 C.F.R. Part 404, Subpt. P, App’x 1, § 12.06.

(Id.)

After carefully evaluating the evidence and comparing it to the
relevant listing criteria, the ALJ concluded that Plaintiff’s
mental impairments did not meet or equal either listing.
The record reveals no error in that regard.

14

(Id.)

The mere fact that Plaintiff’s doctors diagnosed her with
bipolar disorder does not establish that her bipolar disorder met
the specific criteria of a listing.

See, e.g., Turner ex rel. BDT

v. Commissioner of Soc. Sec., No. 6:10CV1497–Orl–GJK, 2012 WL
1004841, at *15 n. 16 (M.D.Fla. Mar. 26, 2012) (unpublished).
Similarly, a step two severity determination requires only a “de
minimis” showing, see, e.g., Felton-Miller v. Astrue, 459 F. App’x
226, 230 (4th Cir. 2011), different from the more “demanding” task
of establishing that a disorder meets or equals a listing, see,
e.g., Thompson v. Astrue, No. 6:10CV1203, 2011 WL 6181450, at *4-5
(W.D. La. Nov. 18, 2011) (unpublished).

Moreover, Plaintiff has

made no effort to show that, in the course of diagnosing or
treating Plaintiff, Drs. Millet and/or Axelbank proffered any
opinions that would tend to establish that Plaintiff’s bipolar
disorder met or equaled any disability listing.
8 at 13-14.)10
e.g.,

Belk,

(See Docket Entry

As a result, the Court should deny relief.

679

F.3d

at

152

n.4;

Zannino,

895

F.2d

at

See,
17;

Nickelson, 2009 WL 2243626, at *2 n.1.
3.

Severe Impairments
The ALJ identified six severe impairments at step two:

post

traumatic stress disorder (“PTSD”), bipolar disorder, congestive

10

Both state agency consultants found that Plaintiff’s mental impairments,
although severe (for step two purposes), failed to meet or equal any of the
listed impairments (for step three purposes). (Tr. 626-39, 742-55.)

15

heart failure, hypertension, obesity, and asthma.

(Tr. 17-20.)

Plaintiff contends the ALJ should have categorized her major
depressive disorder, migraines, gastroesophageal reflux disorder
(“GERD”), and personality disorder as additional severe impairments
and should have addressed them in the RFC formulation.
Entry 8 at 17-18.)

(Docket

The Court should find no reversible error.

An impairment qualifies as “not severe” if it constitutes only
“a slight abnormality . . . that has no more than a minimal effect
on the ability to do basic work activities.” Policy Interpretation
Ruling Titles II and XVI: Considering Allegations of Pain and Other
Symptoms in Determining Whether a Medically Determinable Impairment
is Severe (“SSR 96-3p”), 1996 WL 374181, at *1 (July 2, 1996).
Applicable regulations define “basic work activities” to include:
(1) Physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying,
or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering
simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, coworkers and usual work situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. §§ 404.1521(b), 416.921(b).

16

Courts generally consider an impairment in any one of the
above-quoted areas severe unless it qualifies as obviously slight,
insignificant, or meaningless.

See Martin v. Heckler, 748 F.2d

1027, 1032 (5th Cir. 1984). A plaintiff, however, must support any
showing of severity with relevant medical evidence:
A claimant’s showing at step two that he or she has a
severe impairment has been described as “de minimis.”
Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997);
see Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.
1988)(“de minimis showing of medical severity”).
A
claimant need only be able to show at this level that the
impairment would have more than a minimal effect on his
or her ability to do basic work activities. Williams,
844 F.2d at 751. However, the claimant must show more
than the mere presence of a condition or ailment. If the
medical severity of a claimant’s impairments is so slight
that the impairments could not interfere with or have a
serious impact on the claimant’s ability to do basic work
activities, the impairments do not prevent the claimant
from engaging in substantial work activity. Thus, at
step two, the ALJ looks at the claimant’s impairment or
combination of impairments only and determines the impact
the impairment would have on his or her ability to work.
Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).
The determination at step two is based on medical factors
alone. Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th
Cir. 2003). A claimant must provide medical evidence
that he or she had an impairment and how severe it was
during the time the claimant alleges they were disabled.
20 C.F.R. § 404.1512(c). The evidence that a claimant
has an impairment must come from acceptable medical
sources including licensed physicians or psychologists.
20 C.F.R. § 404.1513(a).
A claimant’s statements
regarding the severity of an impairment is [sic] not
sufficient. Adame v. Apfel, 2000 WL 422341 at *3-4 (D.
Kan. March 20, 2000); Flint v. Sullivan, 743 F. Supp.
777, 782 (D. Kan. 1990).

17

Rivas v. Barnhart, No. 05-1266 MLB, 2006 WL 4046153, at *4 (D. Kan.
Aug. 16, 2006) (unpublished).
Plaintiff did not meet that burden.

With regard to migraines

and GERD, no medical evidence establishes that these impairments
had more than a minimal impact on Plaintiff’s ability to perform
basic work activities. The record reflects only sporadic treatment
for migraines (e.g., in June 2006,

November 2006,

May 2007, and

April 2008) and her symptoms resolved with injections of pain and
anti-nausea medication.

(Tr. 276, 551, 561-66, 573-77, 804-05.)

As to GERD, the record shows, at most, a complaint of related
symptoms on June 26, 2006, and a change in her prescription from
ranitidine to Prevacid. (Tr. 575.) Plaintiff did not even mention
GERD as an impairment on her Disability Report (Tr. 204) or at her
hearing (Tr. 38-67). Moreover, an upper gastrointestinal endoscopy
in June 2008 revealed a normal esophagus, stomach, and duodenum.
(Tr.

866-67.)

Substantial

evidence

thus

supports

the

ALJ’s

omission of migraines and GERD from the list of severe impairments.
The same conclusion applies with respect to major depressive
disorder

and

personality

disorder.

Dr.

Millet,

Plaintiff’s

treating psychiatrist, did not diagnose her with either of those
disorders.

(Tr. 355-59, 533-543, 656, 769, 858-59, 908-914.)

Instead, Dr. Millet consistently diagnosed Plaintiff with bipolar
disorder and PTSD (id.), both of which the ALJ identified as severe

18

impairments (Tr. 17).
evidence

supports

Under these circumstances, substantial

the

ALJ’s

decision

not

to

identify

major

depressive disorder or personality disorder as severe impairments.
Even if the ALJ erred by failing to classify migraines, GERD,
major depressive disorder, and personality disorder as severe
impairments, that error would not warrant a remand.

Where an ALJ

concludes that a plaintiff suffers from at least one severe
impairment, any failure to categorize an additional impairment as
severe generally cannot constitute reversible error, because, “upon
determining that a claimant has one severe impairment, the [ALJ]
must

continue

evaluation.”

with

the

remaining

steps

in

his

disability

Maziarz v. Secretary of Health & Human Servs., 837

F.2d 240, 244 (6th Cir. 1987); accord Oldham v. Astrue, 509 F.3d
1254, 1256-57 (10th Cir. 2007); Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007); Lauver v. Astrue, No. 2:08CV87, 2010 WL 1404767,
at *4 (N.D.W. Va. Mar. 31, 2010) (unpublished); Washington v.
Astrue, 698 F. Supp. 2d 562, 579 (D.S.C. 2010); Jones v. Astrue,
No. 5:07CV452FL, 2009 WL 455414, at *2 (E.D.N.C. Feb. 23, 2009)
(unpublished).

In this case, the ALJ found six severe impairments

at step two and (as discussed both above and below) properly
proceeded with the remaining steps of the SEP.

(Tr. 17-26.)

Any

alleged misapplication of law at step two thus caused no prejudice.
See Oldham, 509 F.3d at 1256-57; Lewis, 498 F.3d at 911; Maziarz,

19

837 F.2d at 244; Lauver, 2010 WL 1404767, at *4; Washington, 698 F.
Supp. 2d at 579-80; Jones, 2009 WL 455414, at *2.
With

regard

to

the

RFC

formulation,

Plaintiff

has

not

disclosed any additional limitations the ALJ allegedly should have
included due to migraines, GERD, major depressive disorder, or
personality disorder.

(Docket Entry 8 at 17-18.)

Plaintiff’s

failure to develop this argument warrants denial of relief.
e.g.,

Belk,

Nickelson,

679
2009

F.3d
WL

at

152

2243626,

n.4;
at

*2

Zannino,
n.1.

895

F.2d

Moreover,

See,

at

17;

the

RFC

sufficiently accounted for symptoms Plaintiff could have attributed
to

major

depressive

disorder

and

personality

disorder

by

restricting her to SRRTs, only occasional contact with co-workers,
no contact with the public, and no work requiring driving.
21.)

(Tr.

Under these circumstances, Plaintiff has shown no basis for

reversal or remand in connection with this assignment of error.
4. State Agency Consultants
Finally, Plaintiff maintains that the ALJ “endorsed the Agency
psychologist who agreed with the ALJ’s assessment . . . but totally
ignored the other Agency psychologist who came to a different
conclusion.” (Docket Entry 8 at 19.) More specifically, Plaintiff
asserts that the ALJ “never acknowledged the existence” of the
opinion of Larry H. Dennis, Ph.D., that Plaintiff would “‘need a
flexible daily schedule and all customary rest periods in roomy

20

work places with a few familiar coworkers’ . . . [as well as that
Plaintiff’s]

contact

with

the

public

should

be

‘casual

and

criticism non-confronting,’ and ‘changes in work settings should be
infrequent and gradually introduced.’”

(Id. (quoting Tr. 642).)

According to Plaintiff, that alleged failure by the ALJ warrants
reversal or remand.

(See id.)

This argument lacks merit.

At the outset, although the ALJ’s decision does not expressly
reference Dr. Dennis’s report, that fact does not mean the ALJ
ignored it; an ALJ need not discuss every piece of evidence in the
record.

See, e.g., Black v. Apfel, 143 F.3d 383, 386 (8th Cir.

1998); Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995).

The ALJ’s

decision does reflect the giving of “[g]reat weight” to state
agency

consultant

Clifford

H.

Charles,

Ph.D.’s

opinion

that

Plaintiff “could perform [SRRTs] . . . [because] th[at] opinion was
consistent with the level of treatment documented in the record and
consistent with the observations of the treating psychiatrist [Dr.
Millet].”

(Tr. 24.)11

Dr. Dennis’s opinion, however, does not

conflict with Dr. Charles’s opinion on that point, but rather also
concludes Plaintiff could do SRRTs.

(See Tr. 642 (stating that

Plaintiff “can understand, remember, and carry out simple tasks[,]

11

As discussed in a prior subsection, substantial evidence supports this
construction of Dr. Millet’s reports and records.

21

. . . follow simple directions[,] . . . [and] maintain attention to
a simple task for two hours without special supervision”).)12
Furthermore, at step five, the ALJ called upon a VE to testify
as to the availability of jobs that conformed to the ALJ’s RFC
determination.

(Tr. 72-74.)

The ALJ included in his hypothetical

question to the VE several restrictions consistent with (or even
greater than) Dr. Dennis’s opinion:

sedentary work, SRRTs, only

occasional contact with co-workers, and no contact with the public.
(Tr. 72.)

In response, the VE identified three different jobs

(each available in significant numbers) that accommodated those
restrictions. (Tr. 73.) On cross-examination, Plaintiff’s counsel
questioned the VE about Dr. Dennis’s requirement of “a flexible
daily schedule, and all customary rest periods, and [a] roomy
workplace, with a few familiar coworkers.”

(Tr. 75.)

The VE

testified that at least one of the three identified positions also
accommodated that restriction. (Tr. 76.) No grounds thus exist to
reverse or remand, because Plaintiff can show no prejudice.

See

Camp, 22 F. App’x at 311.

12
Sedentary jobs customarily have “a morning break, a lunch period, and
an afternoon break at approximately 2–hour intervals.” Policy Interpretation
Ruling Titles II and XVI: Determining Capability to Do Other Work—Implications
of a Residual Functional Capacity for Less Than a Full Range of Sedentary Work
(“SSR 96–9p”), 1996 WL 374185, at *6 (July 2, 1996). Accordingly, the ALJ’s
adoption of an RFC for only sedentary work accommodated the two-hour attention
limit endorsed by Dr. Dennis.

22

CONCLUSION
Plaintiff’s assignments of error all lack merit.
ALJ

First, the

did

either

not

misconstrue

Dr.

Millet’s

opinion(s),

in

connection with the step two severity analysis or the formulation
of the RFC.

Second, the fact that Plaintiff received a diagnosis

of bipolar disorder and that said impairment met the step two
severity requirement does not establish that the ALJ erred by
concluding that it failed to meet or to equal a listing.
Plaintiff

has

shown

no

reversible

error

by

the

ALJ

Third,
in

the

identification of severe impairments at step two and/or in the
consideration of all impairments for purposes of setting the RFC.
Finally, the record reflects no basis for reversal or remand
regarding Dr. Dennis’s opinion(s).
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment

on

the

Pleadings

(Docket

Entry

7)

be

denied,

that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 11)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 18, 2014

23