SHAW v. BERRYHILL

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 02/20/2018, that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment on the Pleadings [Doc. # 10 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 13 ] 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
KRISTI TINGEN SHAW,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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1:17CV198

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Kristi Shaw (“Plaintiff”) brought this action pursuant to Sections 205(g) and
1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying her claims for Disability Insurance Benefits and Supplemental Security Income under,
respectively, Titles II and XVI of the Act. The parties have filed cross-motions for judgment,
and the administrative record has been certified to the Court for review.
I.

PROCEDURAL HISTORY
Plaintiff protectively filed applications for Disability Insurance Benefits and

Supplemental Security Income Benefits on August 15, 2013 and August 23, 2013, respectively,
alleging a disability onset date of January 1, 2004 in both applications. (Tr. at 13, 205-16.) 1
Her applications were denied initially (Tr. at 62-92, 126-33) and upon reconsideration (Tr. at

1

Transcript citations refer to the Sealed Administrative Record [Doc. #8].

93-121, 136-53). Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge (“ALJ”). (Tr. at 154-55.) Plaintiff, along with her attorney and an
impartial vocational expert, attended the subsequent hearing on August 10, 2015. (Tr. at 13.)
The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of the Act
from her alleged onset date through August 31, 2015, the date of his decision. (Tr. at 24.) On
January 20, 2017, the Appeals Council denied Plaintiff’s request for review of the decision,
thereby making the ALJ’s conclusion the Commissioner’s final decision for purposes of
judicial review. (Tr. at 1-5.)
II.

LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
ALJ if they are supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation 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. 1993)
(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 citations and quotation marks omitted). “If there is
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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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” 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 ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing 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 undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). 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 a continuous
period of not less than 12 months.’” Id. (quoting 42 U.S.C. § 423(d)(1)(A)). 2

“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Security Income
Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
2

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“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[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 the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, “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,” then “the ALJ must assess the claimant’s residual functional
capacity (‘RFC’).” Id. at 179. 3 Step four then requires the ALJ to assess whether, based on
“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.
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that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that
a significant number of jobs exist which the claimant could perform, despite the claimant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, 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.
III.

DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since her alleged onset date. Plaintiff therefore met her burden at step one of the
sequential evaluation process. At step two, the ALJ further determined that Plaintiff suffered
from the following severe impairments:
hypothyroidism; thoracic disc disease; cervical disc disease; anxiety; and
depression.
(Tr. at 15.) The ALJ found at step three that none of these impairments met or equaled a
disability listing. (Tr. at 16-17.) Therefore, the ALJ assessed Plaintiff’s RFC and determined
that she could perform medium work with further mental limitations. (Tr. at 17.) Specifically,
the ALJ found that Plaintiff can:
sit, stand, and walk for up to six hours in an eight-hour day, can lift 50 pounds
occasionally, and can lift and carry 25 pounds frequently. She is restricted to
performing jobs that involve simple, routine, and repetitive tasks with a
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reasoning level of three as defined in the Dictionary of Occupational Titles. She
is unable to perform high stress work that involves an assembly-line pace or
that requires meeting production quotas.
(Tr. at 17.) Based on the RFC determination, the ALJ found under step four of the analysis
that Plaintiff could not perform her past relevant work. (Tr. at 23.) However, he found at
step five that, given Plaintiff’s age, education, work experience, RFC, and the testimony of the
vocational expert as to these factors, she could perform other jobs available in the national
economy. (Tr. at 23-24.) Therefore, the ALJ concluded that Plaintiff was not disabled under
the Act. (Tr. at 24.)
Plaintiff now raises two challenges to the ALJ’s decision. First, she argues that the ALJ
erred in finding Plaintiff capable of performing a reduced range of medium work in the RFC.
Second, she contends that the ALJ erred by failing to include fibromyalgia as a severe
impairment at step two of the sequential analysis. After a thorough review of the record, the
Court finds that neither of Plaintiff’s contentions merit remand.
A.

RFC Determination

In challenging the ALJ’s RFC assessment, Plaintiff first contends that her “credible
testimony serves to illustrate that she is unable to work due to chronic severe pain.” (Pl.’s Br.
[Doc. #11] at 6.) Plaintiff then recounts her testimony and argues that the testimony “is
strongly supported by the record.” (Pl. Br. at 7.) However, the ALJ considered Plaintiff’s
testimony and the record, and concluded that Plaintiff’s statements concerning the intensity,
persistence and limiting effects of her symptoms “are not entirely credible for the reasons
explained in this decision.” (Tr. at 21.)

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Under the applicable regulations, the ALJ’s decision must “contain specific reasons for
the finding on credibility, supported by the evidence in the case record.” Social Security Ruling
96–7p, Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual's Statements, 1996 WL 374186 (July 2, 1996)
(“SSR 96–7p”); see also 20 C.F.R. § 404.1529. 4 Toward this end, the Fourth Circuit in Craig
v. Chater set out a two-part test for evaluating a claimant’s statements about symptoms. 76
F.3d at 594-95. “First, there must be objective medical evidence showing ‘the existence of a
medical impairment(s) which results from anatomical, physiological, or psychological
abnormalities and which could reasonably be expected to produce the pain or other symptoms
alleged.’” Id. at 594 (citing 20 C.F.R. §§ 416.929(b) & 20 C.F.R. § 404.1529(b)). If the ALJ
determines that such an impairment exists, the second part of the test then requires him to
consider all available evidence, including Plaintiff’s statements about her pain, in order to
evaluate “the intensity and persistence of the claimant’s pain, and the extent to which it affects
her ability to work.” Craig, 76 F.3d at 595.
“According to the regulations, the ALJ ‘will not reject [a claimant’s] statements about
the intensity and persistence of [her] pain or other symptoms or about the effect [her]
Effective March 28, 2016, see Social Security Ruling 16–3p, 2016 WL 1237954 (Mar. 24, 2016), the Social
Security Administration superseded SSR 96–7p with Social Security Ruling 16–3p, 2016 WL 1119029, at *1
(Mar. 16, 2016). The new ruling “eliminat[es] the use of the term ‘credibility’ from . . . sub-regulatory policy, as
[the] regulations do not use this term.” Id. The ruling “clarif[ies] that subjective symptom evaluation is not an
examination of the individual’s character,” id., and “offer[s] additional guidance to [ALJs] on regulatory
implementation problems that have been identified since [the publishing of] SSR 96–7p,” id. at *1 n.1. The
ALJ’s decision in this case predates the effective date of SSR 16–3p, and “because SSR 16–3p changes existing
Social Security Administration policy regarding subjective symptom evaluation, that Ruling does not apply
retroactively, see Bagliere v. Colvin, No. 1:16CV109, 2017 WL 318834, at *4–8 (M.D.N.C. Jan. 23, 2017) (Auld,
M.J.), recommendation adopted, slip op. (M.D.N.C. Feb. 23, 2017) (unpublished) (Eagles, J.); see also Hose v.
Colvin, No. 1:15CV00662, 2016 WL 1627632, at *5 n.6 (M.D.N.C. Apr. 22, 2016) (unpublished) (Auld, M.J.),
recommendation adopted, slip op. (M.D.N.C. May 10, 2016) (Biggs, J.).” Ivey v. Berryhill, No. 1:16CV1304,
2017 WL 4236558 at *6 n.7 (M.D.N.C. Sept. 22, 2017) (Auld, M.J.).
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symptoms have on [her] ability to work solely because the available objective medical evidence
does not substantiate [her] statements.’” Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017)
(quoting 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)). In short, objective medical evidence of
pain is not required at step two of Craig.

Id. However, this maxim does not render any

available objective evidence irrelevant at that step. Rather, a claimant’s “symptoms, including
pain, will be determined to diminish [her] capacity for basic work activities [only] to the extent
that [her] alleged functional limitations and restrictions due to symptoms, such as pain, can
reasonably be accepted as consistent with the objective medical evidence and other evidence.”
20 C.F.R. § 404.1529(c)(4); see also Hines, 453 F.3d at 565 n.3 (“Although a claimant’s
allegations about her pain may not be discredited solely because they are not substantiated by
objective evidence of the pain itself or its severity, they need not be accepted to the extent
they are inconsistent with the available evidence.”).
This approach facilitates the ALJ’s ultimate goal, which is to accurately determine the
extent to which Plaintiff’s pain or other symptoms limit her ability to perform basic work
activities. Relevant evidence for this inquiry includes Plaintiff’s “medical history, medical
signs, and laboratory findings” Craig, 76 F.3d at 595, as well as the following factors set out in
20 C.F.R. § 404.1529(c)(3):
(i) [Plaintiff’s] daily activities;
(ii) The location, duration, frequency, and intensity of [Plaintiff’s] pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication [Plaintiff]
take[s] or [has] taken to alleviate [her] pain or other symptoms;
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(v) Treatment, other than medication, [Plaintiff] receive[s] or [has] received for
relief of [her] pain or other symptoms;
(vi) Any measures [Plaintiff] use[s] or [has] used to relieve [her] pain or other
symptoms (e.g., lying flat on [her] back, standing for 15 to 20 minutes every
hour, sleeping on a board, etc.); and
(vii) Other factors concerning [Plaintiff’s] functional limitations and restrictions
due to pain or other symptoms.
Where the ALJ has considered these factors and has heard Plaintiff’s testimony and
observed her demeanor, the ALJ’s credibility determination is entitled to deference. See
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). Accordingly, the Court “will reverse an
ALJ’s credibility determination only if the [plaintiff] can show it was ‘patently wrong.’” Powers
v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000).
In this case, after a lengthy discussion of Plaintiff’s testimony, treatment records, and
the medical opinion evidence, the ALJ found that Plaintiff’s “hypothyroidism and her disc
disease would preclude her from performing heavy exertional activities[,] but they are not of
such severity as to prevent her from performing medium work.” (Tr. at 22.) In reaching this
conclusion, the ALJ noted that Plaintiff:
has evidence of degenerative disc disease in the cervical and thoracic spine but
she does not have MRI evidence of spinal cord compression. She has no
neurological deficits indicative of a nerve root compression syndrome. A
current physical examination showed minimal findings. It is noted that the
claimant had minimal treatment for her chronic pain between 2006 and 2012.
She currently has no signs of inflammation, has a normal range of motion, and
has normal neurological findings. She has no impairment of gait or station.
[Plaintiff] has not developed any complications related to her hypothyroidism.
This condition is well-controlled with medication.
[Plaintiff] has been treated for anxiety and depression and she is now also
diagnosed with a bipolar disorder and ADD. However, her mental status
findings have remained normal. She is able to care for her personal needs and
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live independently. In 2013, she reported that she was looking for work. She
was able to make a two-week trip to Georgia with her mother in December
2014. She currently engages in self-employment activities [she distresses
furniture and tries to sell it].
In addition, the medical evidence and observations by the Administrative Law
Judge do not reveal any evidence of a change in motor tone or bulk such as
disuse atrophy, or other change in body habitus or constitutional appearance
such as weight loss, which might be expected in a person whose activities are
markedly restricted due to a debilitating disease process. These factors indicate
that the claimant’s allegations of functional restrictions are not fully credible.
(Tr. at 21-22.) Plaintiff fails to show that the ALJ’s findings were unsupported by the evidence
or based upon an incorrect application of law. To the extent that the ALJ’s conclusion was
contrary to Plaintiff’s testimony, the ALJ made a credibility determination after considering
Plaintiff’s testimony and the applicable factors at length. Plaintiff has not shown how this
credibility analysis was improper or how the ALJ’s credibility determination was unsupported
by substantial evidence. To the extent that Plaintiff essentially asks the Court to re-weigh the
evidence and come to a different conclusion than the ALJ, it is not the function of this Court
to re-weigh the evidence or reconsider the ALJ’s determinations if they are supported by
substantial evidence. As noted above, “[w]here conflicting evidence allows reasonable minds
to differ as to whether a claimant is disabled, the responsibility for that decision falls on the
ALJ.” Hancock, 667 F.3d at 472. Thus, the issue before the Court is not whether a different
fact-finder could have drawn a different conclusion, or even “whether [the claimant] is
disabled,” but rather, “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, 76 F.3d at 589. Here, the ALJ reviewed the evidence, explained his

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decision, explained the reasons for his credibility determination, and supported that
explanation with substantial evidence.
Plaintiff next contends that the RFC for medium work “is in direct contradiction with
the assessment of Dr. Paul Walker.” (Pl.’s Br. at 8.) However, the ALJ specifically considered
Dr. Walker’s October 12, 2005 examining source statement (Tr. at 20) and recounted Dr.
Walker’s opinion that Plaintiff “could perform sedentary exertional activities with postural and
manipulative restrictions.” (Tr. at 22, 311.) However, the ALJ found that “Dr. Walker’s
clinical findings are inconsistent with the record as a whole,” and the ALJ therefore gave little
weight to Dr. Walker’s opinion. (Tr. at 22.) The ALJ instead gave great weight to a
consultative examination by Dr. Edwin Micah dated September 25, 2013. The ALJ noted that
on examination, Dr. Micah found that Plaintiff
had no signs of inflammation or any muscle spasms. She had a full range of
motion of the spine and joints. Her neurological findings were normal,
including muscle strength, rated 5/5 in all four extremities. She had no
impairment of gait or station and she did not require use of an assistive device.
(Tr. at 20.) The ALJ gave great weight to Dr. Micah’s opinion that Plaintiff “was not physically
impaired,” as well as the findings of the state agency medical consultants that Plaintiff could
perform a full range of medium work. (Tr. at 22.)
Plaintiff does not directly challenge the ALJ’s decision to give little weight to Dr.
Walker’s opinion. Instead, Plaintiff notes that during the hearing, Plaintiff’s counsel asked the
vocational expert to list occupations consistent with Dr. Walker’s opinion, and the vocational
expert testified that such a person would be limited to sedentary work. (Pl.’s Br. at 8 (citing
Tr. at 58).) However, “[t]o be relevant or helpful, a vocational expert’s opinion must be based
upon consideration of all evidence of record, and it must be in response to a hypothetical
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question which fairly sets out all of the claimant’s impairments.” McPherson v. Astrue, 605
F. Supp. 2d 744, 779 (S.D. W. Va. 2009) (citing Walker v. Bowen, 889 F.2d 47, 51 (4th
Cir.1989)). “[T]he questions need only reflect those impairments that are supported by the
record.” McPherson, 605 F. Supp. 2d at 779-80 (citing Chrupcala v. Heckler, 829 F.2d 1269,
1276 (3d Cir. 1987)). An ALJ is not obligated to structure hypothetical questions accounting
for impairments he found to be not severe or not credible when assessing the claimant’s RFC,
McPherson, 605 F. Supp. 2d at 779-80, nor is he required to rely on testimony resulting from
such questions. Here, the ALJ gave Dr. Walker’s 2005 evaluation little weight, so Dr. Walker’s
limitations were not included in the ALJ’s hypothetical question to the vocational expert.
Instead, the ALJ asked the vocational expert a hypothetical question consistent with the RFC
that was ultimately adopted. As set out above, the ALJ made that RFC determination based
on the evidence in the record, and he explained that determination at length. Plaintiff has not
set out a basis to conclude that the ALJ erred in that determination.
Plaintiff next contends that, had the ALJ found her limited to sedentary, or even light,
work, “a finding of disabled would have been directed by the Medical-Vocational Guidelines.”
(Pl.’s Br. at 8.) This argument is inapposite, as the ALJ made no such finding. As set out
above, the ALJ made the RFC determination after a full consideration and discussion of the
evidence in the record, taking into account the factors set out in the regulations, and that
determination is supported by substantial evidence.

The fact that some other RFC

determination would have led to a different conclusion under the Guidelines is irrelevant.
Finally, Plaintiff argues that the ALJ “erroneously equated the ability to engage in some
activities on her own schedule with an ability to work full-time.” (Pl.’s Br. at 9.) However, as
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set out above, the Social Security regulations specifically provide that activities of daily living
are relevant when assessing a claimant’s credibility. See 20 C.F.R. §§ 404.1529(c)(3)(i) and
416.929(c)(3)(i). Accordingly, the ALJ was entitled to consider Plaintiff’s abilities to live
independently, care for her personal needs, seek employment, engage in self-employment
activities, and travel, as evidence that her impairments were not as limiting as she alleged. (Tr.
at 22.) Moreover, the ALJ did not rely on Plaintiff’s activities alone in making his adverse
finding, as Plaintiff suggests. Rather, he considered her activities in conjunction with the
longitudinal treatment record and objective clinical findings before discounting her credibility.
As noted above, Plaintiff fails to show that these findings were unsupported by substantial
evidence or that the ALJ somehow erred in making his credibility determination. In short, the
Court finds no basis for remand.
B.

Step Two Determination

Plaintiff next contends that the ALJ erred at step two of the sequential analysis by
“completely failing to address [Plaintiff’s] fibromyalgia.” (Pl.’s Br. at 10.)
Step two is a threshold determination of whether claimants have a severe
impairment (or combination of impairments) that meets the twelve-month
duration requirement and significantly limits their ability to do basic work
activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (2010). If the
Commissioner finds no severe impairments, the claimant is not disabled and
the analysis does not proceed to the other steps. Id. However, if a claimant
does have a severe impairment or combination of impairments, the ALJ must
consider the effects of both the severe and non-severe impairments at the
subsequent steps of the process, including the determination of RFC. See 20
C.F.R. § 404.1523 (2010); SSR 96–8p, 1996 WL 374184, at * 5 (1996); SSR 86–
8, 1986 WL 68636, at *5 (1986). If the ALJ proceeds to discuss and consider
the non-severe impairment at subsequent steps, there is no prejudice to the
claimant. See Thomas v. Commissioner, Soc. Sec. Admin., No. SAG–11–3587,
2013 WL 210626, at *2 (D. Md. Jan. 17, 2013) (finding harmless error where
ALJ continued with sequential evaluation process and considered both severe
and non-severe impairments); Kenney v. Astrue, No. CBD–10–1506, 2011 WL
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5025014, at *5 (D. Md. Oct. 20, 2011) (declining to remand for failure to classify
an impairment as severe because it would not change the result).
Rivera v. Astrue, No. CBD-12-1095, 2013 WL 450781, at *7 (D. Md. Aug. 22, 2013). In other
words, “[a]s long as the ALJ determines that the claimant has at least one severe impairment
and proceeds to discuss all of the medical evidence, any error regarding failure to list a specific
impairment as severe at step two is harmless.” McClain v. Colvin, No. 1:12CV1374, 2014 WL
2167832, at *4 (M.D.N.C. May 23, 2014) (citations omitted). Therefore, in considering the
alleged error at step two in this case, the Court also considers the ALJ’s analysis at subsequent
steps in the sequential analysis.
Here, the ALJ identified five severe impairments at step two of the sequential analysis:
hypothyroidism, thoracic disc disease, cervical disc disease, anxiety, and depression,. (Tr. at
15.) He also categorized Plaintiff’s carpal tunnel syndrome as non-severe. (Tr. at 16.)
Although he failed to mention Plaintiff’s fibromyalgia at this step, a review of the decision as
a whole reveals that the ALJ discussed and considered this impairment later in the sequential
analysis. In particular, the ALJ discussed at length Plaintiff’s treatment records from Triangle
Orthopaedic Associates from 2003 to 2006. (Tr. at 19-20.) These are the same treatment
records that Plaintiff now cites as evidence of her fibromyalgia. These records reflect that
Plaintiff complained of joint pain and widespread pain during the period from March 2005 to
October 2006, and her doctors considered multiple possibilities to explain the pain. Records
from May 10, 2005, August 29, 2005, April 7, 2006, May 3, 2006, and May 31, 2006 reflect
“possible fibromyalgia,” (Tr. at 362, 374, 386, 389, 392) although the fibromyalgia points were
sometimes positive (Tr. at 374, 386) and at least one time negative (Tr. at 380). Records from
August, September, and October 2006 reflect complex pain with fibromyalgia (Tr. at 395, 401,
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405). 5 The ALJ considered these records at length, noting Plaintiff’s “wide-spread pain.” (Tr.
at 19-20.) The ALJ also considered Plaintiff’s testimony regarding her treatment for pain
between 2004 and 2006, including specifically “pain in her hips, knees, and shoulders” and
“injections that might help with fibromyalgia.” (Tr. at 18.) Finally, the ALJ assigned great
weight to the opinions of the State agency medical consultants (Tr. at 22). Both consultants
acknowledged Plaintiff’s inclusion of fibromyalgia among the 13 impairments alleged by
Plaintiff in her disability applications (Tr. at 63, 80) and considered the impact of fibromyalgia
as a non-severe impairment when assessing her RFC (Tr. at 70, 87). Both consultants
concluded that Plaintiff could perform a full range of medium work. (Tr. at 22, 72-73, 76,
103, 107.) Similarly, consultative examiner Dr. Edwin Micah considered Plaintiff’s history of
fibromyalgia, along with her back pain, hypothyroidism, depression, and abnormal liver
enzymes, in concluding that she was not physically limited during the time period at issue. (Tr.
at 22, 510.) As with the State agency consultants, the ALJ assigned great weight to Dr. Micah’s
opinion. (Tr. at 22.) Thus, all of Plaintiff’s evidence of fibromyalgia and chronic pain was
taken into account in reaching the determination in this case. Accordingly, the ALJ’s failure
to separately identify fibromyalgia as a severe impairment at step two of the sequential analysis
did not result in any error in any event, since all of the potentially relevant evidence was
considered in formulating the RFC and reaching the determination in this case.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Judgment on the Pleadings [Doc.

These treatment records also reflect multiple positive drug screens for high levels of cocaine in September
and October 2006. (Tr. at 397, 401-02, 405.)

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#10] be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #13] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 20th day of February, 2018.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

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