Steidl v. Commissioner of Social Security
Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; plaintiff's complaint is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 2/7/17. (S,AA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
NANCY A. BERRYHILL1,
ACTING COMMISSIONER OF SOCIAL )
CASE NO. 1:16CV146
GEORGE J. LIMBERT
MEMORANDUM OPINION & ORDER
Plaintiff Sandra Steidl (“Plaintiff”) requests judicial review of the final decision of the
Commissioner of the Social Security Administration (“Defendant”) denying her applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt. #1.
Plaintiff asserts that: (1) the administrative law judge (“ALJ”) failed to properly consider her
migraine headaches as a severe impairment at Step Two of the sequential analysis; (2) the ALJ
failed to properly consider and analyze the opinion of her treating physician Dr. Zeiger; and (3)
substantial evidence does not support the ALJ’s Step Four determination. ECF Dkt. #17.
For the following reasons, the Court AFFIRMS the ALJ’s decision and DISMISSES
Plaintiff’s complaint in its entirety WITH PREJUDICE:
On May 31, 2012, Plaintiff protectively filed applications for DIB and SSI alleging
disability beginning November 10, 2010 due to breast cancer, hypertension, glaucoma, migraines,
back pain, and hand arthritis.
ECF Dkt. #13 (“Tr.”) at 179-202.2
The Social Security
On January 20, 2017, Nancy A. Berryhill became the acting Commissioner of Social Security, replacing
Carolyn W. Colvin.
All citations to the Transcript refer to the page numbers assigned when the transcript was filed in
the CM/ECFsystem rather than the page numbers assigned when the transcript was compiled. This allows
the Court to easily reference the Transcript as the page numbers of the .PDF file containing the transcript
correspond to the page numbers assigned when the transcript was filed in the CM/ECI system.
Administration (“SSA”) denied Plaintiff’s applications initially and upon reconsideration. Id. at
52-98. Plaintiff then requested a hearing before an ALJ, which was held on August 19, 2014. Id.
at 30-51, 98.
On September 8, 2014, the ALJ issued a decision denying Plaintiff’s applications for DIB
and SSI. Tr. at 14-24. On January 21, 2016, Plaintiff filed the instant suit seeking review of the
ALJ’s decision. ECF Dkt. #1. On April 7, 2016, the parties consented to the jurisdiction of the
undersigned. ECF Dkt. #15. On June 1, 2016, Plaintiff filed a brief on the merits. ECF Dkt. #17.
On August 1, 2016, Defendant filed a merits brief. ECF Dkt. #19. Plaintiff did not file a reply
RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE
Plaintiff was diagnosed with breast cancer in 2009 with no lymph node involvement and
she underwent bilateral mastectomies with reconstruction on January 29, 2010. Tr. at 289, 511521. She had an arterial bleed during the surgery, but she recovered well. Id. at 310, 618. She did
not have to undergo radiation or chemotherapy and was placed on Arimidex with no complaints
of side effects. Id. at 289-291. She continued to follow up status-post mastectomies and records
from March 8, 2010 showed that Plaintiff was doing well overall. Id. at 310-328. Records from
March 7, 2011 indicate that Plaintiff was continuing to do well, but she was anxious as she had not
yet found a job after being laid off several months prior. Id. at 328. Records from October 4, 2011
showed no clinical evidence of recurrent breast cancer. Id. at 292. Plaintiff also underwent a
hysterectomy on November 17, 2010 after a history of uterine fibroids and previous uterine fibroid
surgeries. Id. at 589-606.
December 5, 2011 medical records indicate that Plaintiff had generalized aches and pains
and she had undergone a trigger finger release and ganglion cyst removal from her right hand on
August 31, 2011. Tr. at 335, 584-588. It was determined that she was clinically free of evidence
of recurrent cancer. Id. at 336.
A December 12, 2011 x-ray of Plaintiff’s spine for osteoporosis showed normal results but
a worsening since her prior x-ray of October 20, 2009. Tr. at 298, 302-303, 581.
January and February 2012 treatment notes show that Plaintiff participated in physical
therapy for her back. Tr. at 568-579.
A May 7, 2012 MRI of Plaintiff’s lumbar spine showed grade 1 spondylolisthesis at L3-L4
and grade I/II spondylolisthesis at L4-L5 with mild to moderate and severe canal stenosis. Tr. at
285, 356, 561-562.
June 14, 2012 x-rays of the lumbar spine showed multiple lumbar degenerative changes,
spondylolisthesis at L4-L5, and minimal spondylolisthesis at the L3-L4 level. Tr. at 355, 557-560.
Thoracic spine x-rays showed thoracic degenerative disc disease (“DDD”). Id.
On June 20, 2012, Plaintiff’s treating physician, Dr. Zieger, referred her to Dr. Diulus of
the Spine Institute in Medina, Ohio due to her continuing leg and back pain. Tr. at 349. Dr. Diulus
noted the MRI results showing lumbar stenosis, most severe at the L4-L5 level with
spondylolisthesis at the L4-L5 level and to a lesser degree at the L3-L4 level. Id. Upon
examination, the physician’s assistant found that Plaintiff had no difficulty arising from a sitting
position or acquiring a full, upright position when standing. Id. at 352. He noted that Plaintiff had
moderate pain in the lumbar region at L5, no spasms, and moderate pain in the midline and
thoracic region at T8-T12. Id. at 353. Plaintiff could toe and heel walk and had normal strength
and reflexes, but she tested positive for production of numbness in the feet and buttock pain upon
straight leg raising. Id. at 354-355. Dr. Diulus diagnosed lumbago, acquired spondylolisthesis,
and spinal stenosis in the lumbar region without neurogenic claudication. Id. at 349. While
believing that Plaintiff would be a good surgical candidate, non-operative treatment was
recommended as physical therapy was tried in the past, but not specifically for Plaintiff’s spine.
Id. Neurontin was also prescribed. Id.
On June 21, 2012, Plaintiff presented to Dr. Moore for follow up of her breast cancer. Tr.
at 505. It was noted that she was doing well from a breast cancer standpoint, but she was
complaining of back pain. Id. Plaintiff indicated that she had x-rays and a MRI of the lumbar
which showed significant degenerative changes and she started the prior night on Gabapentin
which was helping. Id. Physical examination showed no significant edema in the extremities, no
masses in the breasts, and a regular heart and lungs. Id. Dr. Moore noted that Plaintiff’s December
12, 2011 bone density study was normal but showed decline from a prior study. Id. She diagnosed
Plaintiff with bilateral breast cancer status post mastectomy, tolerating Anastrozole, and clinically
free of recurrent disease.
Dr. Moore indicated that Plaintiff would continue taking
Anastrozole. Id. at 506.
On June 27, 2012, Plaintiff’s ophthalmologist completed a form indicating that Plaintiff
had early cataracts and chronic open-angle glaucoma. Tr. at 343. Her visual field tests were
normal. Id. at 344.
Plaintiff participated in physical therapy in June and July of 2012. Tr. at 366. She also
underwent epidural steroid injections. Id. at 366-387.
On August 28, 2012, Plaintiff was referred to a pain management clinic for her back pain.
Tr. at 388. She described her pain as aching and sharp and rated it at a 6 out of 10 on a pain scale.
Id. She indicated that it was exacerbated by sitting, standing, lifting, arising from sitting and by
walking. Id. She related that physical therapy was ineffective and it hurt. Id. Upon examination,
Plaintiff had bilateral diffuse lumbar spinal tenderness, sacroiliac tenderness, negative straight leg
raising, and positive pain reproduction with facet loading. Id. at 391. She had intact muscular
strength, her extremities were normal, and she had no trigger points, a normal gait, and normal
muscle tone, sensation and strength. Id. Dr. Shinn of the pain management clinic diagnosed
lumbar spondylosis, DDD of the lumbar spine, spondylolisthesis of the lumbar region, lumbar
stenosis, and lumbar radiculopathy. Id. He recommended continuing injections and to decrease
her Neurontin dosage due to side effects. Id. Plaintiff underwent additional injections in
September of 2012 . Id. at 382
On September 18, 2012, Dr. Ghoubrial conducted a consultative examination for the
agency. Tr. at 402. Plaintiff reported that she could not work because of pain and discomfort in
her joints and her back. Id. She indicated that she had spinal stenosis and had exacerbation of her
arthritis due to the Arimidex that she was taking for her breast cancer. Id. She also reported that
the Arimidex and Neurontin that she was taking caused her fatigue Id. She stated that she could
stand for 15 minutes at a time before becoming numb from the waist down. Id. Upon examination,
Dr. Ghoubrial found that Plaintiff was 63.5 inches tall and weighed 211 pounds, she had normal
grasp and manipulation abilities, but moderate decreased range of motion of the lumbar spine on
flexion and extension. Id. at 405-406. He noted that Plaintiff was able to get on and off the exam
table, she could toe and heel walk, and she had normal sensation and a negative straight leg raise
test. Id. at 406. Dr. Ghoubrial diagnosed arthritis, breast cancer, hypertension, spinal stenosis, and
numbness of the legs. Id. He opined that Plaintiff would have no difficulty sitting, standing,
hearing, speaking, seeing, or traveling, she would not have difficulty lifting or carrying objects
intermittently in an 8-hour day, and she would have no difficulty with a sedentary job that required
intermittent standing and carrying. Id. at 407.
September 26, 2012 medical notes from Plaintiff’s surgical doctor indicated that there was
no clinical evidence of recurrent breast cancer. Tr. at 409. She noted that Plaintiff was continuing
to take Anastrozole without complaint and Plaintiff’s main complaint was severe lumbar disc
Plaintiff underwent L4-L5 intralaminar epidural steroid injections in September of 2012.
Tr. at 531-549. She presented to Dr. Shin, who administered the injections for her low back pain
with numbness down her legs, ankles and feet. Id. at 548. She rated her pain as 4 out of 10 and
indicated that staying in any position for a length of time aggravated the pain, while moving around
and laying down helped the pain. Id. Dr. Shin’s musculoskeletal examination found that Plaintiff
had no joint pain or swelling. Id. at 550. Her extremities were normal and her sensation was
He diagnosed Plaintiff with lumbar spondylosis, DDD of the lumbar spine,
spondylolisthesis of the lumbar region, severe L4-L5 lumbar stenosis, and lumbar radiculopathy.
Id. at 552.
On December 21, 2012, Plaintiff presented to Dr. Moore for follow up of her breast cancer.
Tr. at 499. It was noted that she was doing well from a breast cancer standpoint, but she was
complaining of continued back pain and generalized joint pain. Id. Plaintiff indicated that these
symptoms existed prior to starting the Anastrozole and she did not want to stop this medication.
Id. It was noted that Plaintiff had a MRI that showed no evidence of metastases. Id. Plaintiff
reported that she saw a spine surgeon and was working with a pain management center. Id.
Physical examination showed no significant edema in the extremities, no masses in the breasts, and
a regular heart and lungs. Id. Dr. Moore noted that Plaintiff’s December 12, 2011 bone density
study was normal but showed decline from a prior study. Id. at 500. She diagnosed Plaintiff with
bilateral breast cancer status post mastectomy, tolerating Anastrozole and clinically free of
recurrent disease. Id. Dr. Moore indicated that Plaintiff would continue taking Anastrozole but
she advised that Plaintiff could switch medications if she wished. Id.
Plaintiff continued to follow up with her primary care physician, Dr. Zeiger, concerning
her back pain. Tr. at 427-428. On January 10, 2013, Dr. Zeiger completed a residual functional
capacity (“RFC”) indicating his diagnosis of lumbar spinal stenosis and his prognosis for Plaintiff
as poor for change in status. Id. at 432. He identified Plaintiff’s symptoms as hand pain, constant
low back pain, fatigue, and recurrent lower extremity pain. Id. He opined that Plaintiff’s
symptoms were severe enough to often interfere with her attention and concentration and he noted
medication side effects of cognitive impairment and somnolence. Id. He further opined that
Plaintiff would need to lie down or recline in excess of the normal breaks given in the workplace
during an 8-hour day. Id. When asked to estimate Plaintiff’s functional limitations if she were
placed in a competitive work environment on an ongoing basis, Dr. Zeiger opined that Plaintiff
could walk less than 1 city block without rest or significant pain, but he was unable to answer how
long she could sit or stand/walk at one time, how many pounds she could lift and carry, or her
abilities to use her hands, fingers and arms. Id. at 432-433. He opined that Plaintiff needed a job
that allowed her the ability to shift positions from sitting, standing or walking, and she would need
to take hourly unscheduled breaks in an 8-hour day for 5-10 minutes each. Id. He also indicated
that she did have limitations in repetitive reaching, but he could not answer the degree of those
limitations. Id. at 433. He also did not answer how often Plaintiff would be absent from work due
to her impairments or treatment. Id. He indicated that Plaintiff was not a malingerer, and rather
than check “yes” or “no” as to whether Plaintiff was capable of working an 8-hour per day job five
days per week, he wrote that Plaintiff could work “sedentary only but uncertain medication
impairment of mental/cognitive state with regards to ability to sustain focus.” Id.
Dr. Cirino of the Cirino Eye Center indicated that he examined Plaintiff on January 22,
2013 and he diagnosed her with primary open angle glaucoma, dry eye, dermatochalasis, and
nuclear sclerosis cataracts. Tr. at 437, 472-478.
On February 13, 2013, Dr. Sunbury, Ph.D., conducted a psychological evaluation of
Plaintiff for the agency. Tr. at 443. Plaintiff reported that she worked for 34 years as a nurse’s
aide and other positions at Medina Hospital, but she was laid off in November of 2010 due to
downsizing. Id. at 443-444. She indicated that she looked for other work but could not find
anything. Id. at 444. She indicated that her back pain is so bad that she could not do any physical
labor. Id. She reported no prior hospitalizations or treatment for psychiatric reasons. Id.
When asked about her daily living activities, Plaintiff reported that she wakes up at 5:30
a.m. and visits with her brother-in-law and sister who live next door and she watches their children
for an hour. Tr. at 445. She returns home and cleans her house, which takes longer than it did in
the past. Id. She alternates between sitting, standing and lying down to help her back pain. Id.
She reported that she goes out to eat or to a flea market with her friends and attends church twice
per week. Id. at 445-446. Her goal for the year was to keep as active as possible, lose weight, and
see a doctor about pain medication that does not cause side effects. Id. at 446.
Dr. Sunbury found that Plaintiff made good eye contact, was able to concentrate on his
questions, and provided relevant and coherent responses. Tr. at 444. He estimated that she had
average intelligence and judgment, low-average insight, and he found that she had no reported
symptoms of depression or anxiety. Id. at 444-445. He made no diagnoses and rated her global
assessment of functioning at 65, indicative of mild symptoms. Id. at 446. He opined that she had
no psychological limitations in understanding, remembering and carrying out instructions, or in
maintaining attention and concentration and in maintaining persistence and pace to perform simple
tasks. Id. He did state “No limitation except physical ones. She was with the same employer for
thirty-four years. She attributes her not being able to find work solely to her arthritis or stenosis
and related conditions.” Id. Dr. Sunbury further opined that Plaintiff related appropriately in the
office and recalled good relations with co-workers and supervisors in answer to whether Plaintiff
had limitations in social interactions. Id. He also indicated that Plaintiff “[p]robably” had no
mental or emotional limitations in responding appropriately to pressures in a work setting. Id.
On June 13, 2013, Dr. Hart, a spinal neurosurgeon, evaluated Plaintiff at the request of Dr.
Zeiger for her complaints of low back pain. Tr. at 465. Plaintiff explained that she had back pain
nearly all of her life, but it had been getting progressively worse over the last few years. Id. She
described pain and numbness down both of her legs and aching pain at a score of 4 out of 10 in her
back. Id. She indicated that the pain is present 24 hours per day, although the medications help.
Id. She reported that the pain level varied with her activities and standing, walking, driving,
bending, lifting, getting out of chair, coughing, sneezing, social activities, and housework made
her pain worse. Id.
Dr. Hart found upon examination that Plaintiff could ambulate without difficulty, she had
a normal gait, and she could heel and toe walk without difficulty. Tr. at 466. She had well
preserved range of motion in all directions and normal strength in both lower extremities, except
fairly significant giveaway weakness in the right lower extremity. Id. Normal reflexes and no
sensory deficits were found and straight leg testing was negative. Id. He recommended a
minimally invasive transforaminal lumbar interbody fusion at L4-L5 to correct her
spondylolistheses and to stabilize her spine. Id. Dr. Hart explained to Plaintiff all of the risks of
this procedure and Plaintiff indicated that she wanted to think about whether to have the surgery.
Id. at 466-467.
On September 19, 2013, Plaintiff presented to Dr. Moore for follow up of her breast cancer.
Tr. at 493. It was noted that she was doing well from a breast cancer standpoint, but she was
complaining of continued back pain and lower extremity pain. Id. She also complained of
worsening left hip pain and residual left knee pain. Id. She declined a switch of her breast cancer
medication to see if her symptoms would stop. Id. Plaintiff indicated that she took Tylenol PM
at night and no pain medications during the day, although she used a heating pad. Id. Physical
examination showed no significant edema in the extremities, no masses in the breasts, and a regular
heart and lungs. Id. at 494. Dr. Moore noted that Plaintiff’s December 12, 2011 bone density
study was normal but showed decline from a prior study. Id. She diagnosed Plaintiff with bilateral
breast cancer status post mastectomy, tolerating Anastrozole, and clinically free of recurrent
disease. Id. Dr. Moore indicated that Plaintiff would continue taking Anastrozole and follow up
with her primary care doctor for her left knee pain. Id.
A bone density test performed on February 25, 2014 showed normal results with a minimal
decrease in the spine bone density and minimal improvement in Plaintiff’s left hip bone density
compared to previous bone density tests. Tr. at 524.
April 15, 2014 notes from Dr. Moore indicated that Plaintiff presented for her breast cancer
follow up and complained of significant arthalgias in her feet, hands, shoulders, ankles and hips.
Tr. at 486. Plaintiff reported that the arthalgias were aggravated by the weather and had worsened
over the years. Id. She was continuing to take the Anastrozole in order to complete her five-year
breast cancer course of therapy. Id. Dr. Moore’s physical examination showed no significant
edema in the extremities, no masses in the breasts, and a regular heart and lungs. Id. She noted
that Plaintiff’s February 25, 2014 bone density study was normal. Id. at 487. She diagnosed
Plaintiff with bilateral breast cancer status post mastectomy, tolerating Anastrozole, and clinically
free of recurrent disease. Id. Dr. Moore indicated that Plaintiff would continue taking Anastrozole
through October of 2014 in order to complete her recommended five-year therapy. Id. She also
suggested hip x-rays, but Plaintiff decided to wait. Id.
On May 22, 2014, Dr. Zeiger’s medical notes indicate that Plaintiff presented for follow
up of her hypertension. Tr. at 480. She informed Dr. Zeiger that she had an ALJ hearing
scheduled based upon her back condition and she needed a functional capacity evaluation. Id. She
indicated that her gait was off balance and she was dizzy, which correlated to her back pain. Id.
She also indicated that her migraines were worse this time of year as she woke up with headaches
and when she sat, her sinuses drained and she felt better. Id. She also related that her feet and legs
from the knees down throb in pain at night and her right ankle was still a problem. Id. Dr. Zeiger
noted that he performed no physical examination beyond reviewing her vital signs and observing
her general appearance, which was alert and in no acute distress. Id. at 482.
stenosis of the lumbosacral spine, and ordered physical therapy and a RFC evaluation. Id.
On July 10, 2014, Plaintiff underwent a nearly four-hour physical work performance
evaluation at Medina Hospital by Physical Therapist Linnean. Tr. at 620-651. Plaintiff reported
that she had always had back problems and back pain and she was taking Gabapentin which
stopped the pain,but she did not like how it made her feel. Id. at 621. She was then prescribed
another medication, but it bothered her stomach too much. Id. After the evaluation, Ms. Linnean
opined that Plaintiff’s overall level of work fell within the light range. Id. She concluded that
Plaintiff was capable of sustaining a light work level for 8 hours per day and 40 hours per week
with an ability to alternate among other tasks to maximize work tolerance to an 8-hour day because
of her limited standing and walking tolerances. Id.
At the ALJ hearing, Plaintiff testified that she had a high school diploma and a driver’s
license. Tr. at 37. She lives in a house with three of her sisters. Id. at 38. When asked if she
experienced side effects from any of her medications, Plaintiff reported that Dr. Zeiger just started
her on Lisinopril and it made her dizzy and light-headed. Id. at 39. She indicated that he also cut
back on her dosage of Hydrochlorothiazide and her side effects were reduced. Id. She also
reported that the Arimidex made her tired. Id. She indicated that her only pain medication was
Ibuprofen at night, and she took cinnamon, turmeric and flaxseed because she tried Gabapentin and
another pain medication, but Gabapentin made her too sleepy and the other medication made her
nauseated. Id. She testified that she spends most of her time during the day sitting with her feet
elevated because she has severe pain in her feet and legs and her ankles swell if she does not
elevate her feet. Id. She was not sure of the cause of the swelling and pain in her ankles and feet,
although she thought Dr. Zeiger said it was from bursitis, arthritis, calcium deposits, and side
effects from Arimidex. Id.
Plaintiff told the ALJ that she does not cook because her sister who enjoys cooking does
it and she attempts to clean the house but it takes her several days to clean their small house. Tr.
at 40. She also does limited laundry, performing one load per every week or two. Id. She also
drives four or five days per week to the store. Id. at 41. The ALJ also asked about an indication
in the record that Plaintiff was babysitting for her sister and Plaintiff responded that her sister who
lives next door has a home daycare and she goes over and lay on the couch and plays with the
children while the daycare was open, although she was not responsible for the children. Id. She
also reported that she went to church with her sisters. Id. The ALJ asked if Plaintiff still went to
flea markets and she said that she did not, but when the ALJ asked the last time she went, Plaintiff
first responded that it was months ago and then she indicated that she went two weeks ago, but she
merely walked in to a particular stand, bought what she needed, and left. Id. at 42.
Plaintiff informed the ALJ that she could not return to her prior job as a secretary because
she needed to keep her feet elevated, her left hand swells, and she has a lot of pain in her hands.
Tr. at 42.
Upon questioning by her counsel, Plaintiff indicated that she suffered from migraines once
or twice a week in the summer, spring, and fall, and one a week or every other week when it was
not high allergy seasons. Tr. at 43. She reported that she suffered migraines all summer long this
current year because of the weather. Id. She reported that damp, cooler weather also makes her
back pain worse and the epidurals that she underwent helped, but only for a month or so. Id.
When asked about the functional capacity evaluation she had, Plaintiff explained that she forced
herself to keep doing it and if the therapist would have told her that she could lay down if needed,
she would have done so because she lays down or sits in her recliner most of the time at home with
her feet elevated. Id. at 44. Plaintiff reported that she asked the therapist if she could rest a minute
and when the therapist said yes, she would sit and when the therapist was ready to move to the next
activity, the therapist would tell her to get up and start and she would do so without asking her if
she was able to do it. Id.
The ALJ then questioned the VE. Tr. at 45. The ALJ asked the VE to assume a
hypothetical person with Plaintiff’s age, experience and education that could: lift, carry, push and
pull up to 10 pounds occasionally and 5 pounds frequently; sit for up to 6 hours of an 8-hour
workday; stand/walk for two hours of an 8-hour workday; wh cannot climb ladders, ropes or
scaffolds; occasionally climb ramps and stairs; occasionally stoop and crouch; never crawl or
kneel; who is capable of frequent far acuity with no limits on near acuity; and who had to avoid
exposure to hazards such as unprotected heights or dangerous moving machinery. Id. at 47. When
the ALJ asked whether this hypothetical individual could perform Plaintiff’s past relevant work
as a secretary, the VE responded that she could as Plaintiff performed that job. Id. at 48.
The ALJ then asked the VE to assume a hypothetical person with Plaintiff’s age, experience
and education and all of the restrictions of his first hypothetical person except that the person also
had to elevate her legs directly in front of her at waist level for 30 minutes during the first half of
a shift during worktime and not on breaks or lunch, and 30 minutes during the second half of a
shift during worktime and not on breaks. Tr. at 48. When the ALJ asked whether this hypothetical
individual could still perform Plaintiff’s past relevant work, the VE responded that she could not.
Id. Plaintiff’s counsel asked the VE whether this hypothetical person could perform Plaintiff’s past
work or any work with all of the restrictions as the first two hypothetical individuals that also
needed five to ten minute unscheduled breaks every hour during the workday. Id. at 49. The VE
responded that such an individual could not perform any work. Id.
RELEVANT PORTIONS OF THE ALJ’S DECISION
In his decision, the ALJ first found that Plaintiff did not engage in substantial gainful
activity since her alleged onset date. Tr. at 16. He then determined that Plaintiff suffered from the
following severe impairments: breast cancer currently in remission; DDD; obesity; and glaucoma.
Id. at 16-17.
The ALJ found that Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed impairments in the Listings. Tr. at
17-18. The ALJ determined that Plaintiff had the RFC to perform light work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b), except that she: cannot climb ladders, ropes or scaffolds;
can occasionally climb ramps and stairs; occasionally stoop and crouch; cannot kneel or crawl; can
perform activities requiring frequent far acuity, with no limits in near acuity; and she has to avoid
workplace hazards such as unprotected heights and dangerous moving machinery. Id. at 18.
The ALJ further found that based upon the RFC and the testimony of the VE, Plaintiff
could perform her past relevant work as a secretary. Tr. at 23. The ALJ concluded that Plaintiff
was not under a disability for social security purposes and was not entitled to DIB or SSI. Id.
STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to
social security benefits. These steps are:
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) and 416.920(b) (1992));
An individual who does not have a “severe impairment” will not be
found to be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c)
If an individual is not working and is suffering from a severe
impairment which meets the duration requirement, see 20 C.F.R.
§ 404.1509 and 416.909 (1992), and which meets or is equivalent
to a listed impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1, a
finding of disabled will be made without consideration of
vocational factors (20 C.F.R. §§ 404.1520(d) and 416.920(d)
If an individual is capable of performing the kind of work he or she
has done in the past, a finding of “not disabled” must be made (20
C.F.R. §§ 404.1520(e) and 416.920(e) (1992));
If an individual’s impairment is so severe as to preclude the
performance of the kind of work he or she has done in the past,
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) and
Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step.
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and
makes a determination of disability. This Court’s review of such a determination is limited in
scope by § 205 of the Act, which states that the “findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g).
Therefore, this Court’s scope of review is limited to determining whether substantial evidence
supports the findings of the Commissioner and whether the Commissioner applied the correct legal
standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s findings
if they are supported by “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal citation omitted)). Substantial evidence is defined as
“more than a scintilla of evidence but less than a preponderance.” Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234 (6th Cir. 2007). Accordingly, when substantial evidence supports the ALJ’s denial
of benefits, that finding must be affirmed, even if a preponderance of the evidence exists in the
record upon which the ALJ could have found plaintiff disabled. The substantial evidence standard
creates a “‘zone of choice’ within which [an ALJ] can act without the fear of court interference.”
Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.2001). However, an ALJ’s failure to follow agency
rules and regulations “denotes a lack of substantial evidence, even where the conclusion of the ALJ
may be justified based upon the record.” Cole, supra, citing Blakely v. Comm’r of Soc. Sec., 581
F.3d 399, 407 (6th Cir.2009) (internal citations omitted).
LAW AND ANALYSIS
The Court takes Plaintiff’s contentions out of the order in which she presented them.
STEP TWO ASSERTION
Plaintiff asserts that the ALJ erred in his Step Two analysis because he failed to consider
and discuss the severity of her migraines. ECF Dkt. #17 at 12-13. Plaintiff acknowledges that the
ALJ addressed her migraines in his RFC analysis, but she argues that he did not indicate whether
the migraines were severe, nonsevere, or a non-medically determinable impairment. Id. As
support for her assertion, Plaintiff cites to her own testimony concerning the frequency of her
migraines during summer, spring and fall and high allergy times. Id. at 13.
The undersigned recommends that the Court find that the ALJ’s failure to explain why
he did not include Plaintiff’s migraines as a severe impairment at Step Two is not error. At step
two of the sequential steps for evaluating entitlement to social security benefits, a claimant must
show that he or she suffers from a severe medically determinable physical or mental impairment.
20 C.F.R. § 404.1520(a)(4)(ii). An impairment is not considered severe when it “does not
significantly limit [one’s] physical or mental ability to do basic work activities.” §404.1521(a).
Once the ALJ determines that a claimant suffers a severe impairment at step two, the
analysis proceeds to step three; any failure to identify other impairments, or combinations of
impairments, as severe in step two is harmless error. Maziarz v. Sec’y of Health & Human Servs.,
837 F.2d 240, 244 (6th Cir.1987). However, all of a claimant’s impairments, severe and not
severe, must be considered at every subsequent step of the sequential evaluation process. See
C.F.R. §404.1529(d); C.F.R. §§ 404.1520(d).
Here, Plaintiff fails to meet her burden of establishing that her migraines were severe. She
offers no explanation or evidence as to how her migraines meet the severity threshold for Step
Two. She merely points to her testimony that she suffered from migraines. ECF Dkt. #17 at 1213; Tr. at 43. In addition, even if the failure to identify migraines as a severe impairment at Step
Two did constitute error, the ALJ determined other of Plaintiff’s impairments to be severe at Step
Two which renders this failure harmless error. Moreover, the ALJ acknowledged Plaintiff’s
migraines in his decision when he determined her RFC, thereby rendering such an error harmless.
Tr. at 18, citing Tr. at 43. The ALJ cited to Plaintiff’s testimony about the migraines, how they
were worse in the spring and fall, and he cited to the fact that she used to take prescription
medications for them but was now taking over the counter medications. Id. at 18. An ALJ’s
failure to include an impairment as severe at Step Two is not reversible error where the ALJ finds
one severe impairment and continues with subsequent steps in the sequential evaluation process
as the ALJ could still properly consider the non-included impairment in determining a claimant’s
RFC. See Maziarz, 837 F.2d at 244 (Commissioner's failure to find claimant's cervical condition
severe not reversible error since the Commissioner did find a severe impairment and continued
with the remaining steps in the sequential evaluation process). The ALJ did in fact determine other
of Plaintiff’s impairments to be severe and he continued onward in the sequential evaluation and
considered Plaintiff’s migraines in determining her RFC.
In addition, substantial evidence supports the ALJ’s decision to find no limitations resulting
from Plaintiff’s migraines in his RFC for her. Again, the ALJ cited to migraines in his decision,
but Plaintiff’s testimony and mere diagnoses alone do not establish the severity of those
impressions or diagnoses or the impact on the ability to perform work. See Higgs, 880 F.2d at 860;
see also Mullett v. Colvin, No. 5:15CV144, 2015 WL 7779226, at *9 (N.D. Ohio Dec. 2, 2015),
unpublished (diagnosis of CTS alone did not require ALJ to include limitations in RFC relating
thereto). Moreover, Plaintiff fails to identify any specific limitations that the ALJ should have
included regarding her migraines and she fails to refer the Court to evidence that the ALJ failed
to consider relating to migraines and any corresponding limitations. See Mullett, 2015 WL
7779226, at *9, unpublished (ALJ did not err in failing to include CTS limitations in RFC where
claimant failed to bring forth evidence of doctor recommendation limitations relating to CTS and
relying upon CTS diagnosis alone); Kutscher v. Comm’r, 2014 WL 3895220, at *13 (N.D. Ohio
Aug. 8, 2014), unpublished (ALJ did not err in failing to account for RFC limitations relating to
diagnoses of bilateral cervical radiculopathy and lumbar radiculopathy, cervical post laminectomy,
and CTS as claimant failed to identify anything more than diagnoses, did not identify limitations
resulting from diagnoses, and failed to cite to medical evidence showing those conditions caused
significant functional limitations). Accordingly, the Court finds no merit to Plaintiff’s assertions
that the ALJ committed reversible error when he failed to include migraines in his Step Two severe
impairment determination and when he did not include any related limitations in his RFC.
TREATING PHYSICIAN’S OPINION
Plaintiff also challenges the ALJ’s treatment of the January 10, 2013 opinion of her treating
physician, Dr. Zeiger. ECF Dkt #17 at 9-12.
If an ALJ decides to discount or reject a treating physician’s opinion, he must provide
“good reasons” for doing so. SSR 96-2p. The ALJ must provide reasons that are “sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” Id. This allows a claimant to understand
how her case is determined, especially when she knows that her treating physician has deemed her
disabled and she may therefore “‘be bewildered when told by an administrative bureaucracy that
[s]he is not, unless some reason for the agency’s decision is supplied.’” Wilson, 378 F.3d at 544
(quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999)). Further, it “ensures that the ALJ applies
the treating physician rule and permits meaningful appellate review of the ALJ’s application of the
rule.” Id. If an ALJ fails to explain why he rejected or discounted the opinions and how those
reasons affected the weight afforded to the opinions, this Court must find that substantial evidence
is lacking, “even where the conclusion of the ALJ may be justified based upon the record.” Rogers,
486 F.3d at 243 (citing Wilson, 378 F.3d at 544).
The Sixth Circuit has noted that, “while it is true that a lack of compatibility with other
record evidence is germane to the weight of a treating physician’s opinion, an ALJ cannot simply
invoke the criteria set forth in the regulations if doing so would not be ‘sufficiently specific’ to
meet the goals of the ‘good reason’ rule.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 2010 WL
1725066, at *8 (6th Cir. Apr.28, 2010). The Sixth Circuit has held that an ALJ’s failure to identify
the reasons for discounting opinions, “and for explaining precisely how those reasons affected the
weight” given “denotes a lack of substantial evidence, even where the conclusion of the ALJ may
be justified based upon the record.” Parks v. Social Sec. Admin., No. 09-6437, 2011 WL 867214,
at *7 (6th Cir. March 15, 2011) (quoting Rogers, 486 F.3d at 243 ). However, an ALJ need not
discuss every piece of evidence in the administrative record so long as he considers all of a
claimant’s medically determinable impairments and the opinion is supported by substantial
evidence. See 20 C.F.R. § 404.1545(a)(2); see also Thacker v. Comm'r of Soc. Sec., 99 Fed.Appx.
661, 665 (6th Cir.2004). Substantial evidence can be “less than a preponderance,” but must be
adequate for a reasonable mind to accept the ALJ’s conclusion. Kyle v. Comm’r of Soc. Sec., 609
F.3d 847, 854 (6th Cir.2010) (citation omitted).
In addressing Dr. Zeiger’s January 10, 2013 completion of a RFC questionnaire, the ALJ
noted the doctor’s findings as to Plaintiff’s limitations and he afforded them little weight. Tr. at
21, citing Tr. at 433-434. The ALJ noted that Dr. Zeiger indicated that Plaintiff had some
limitations, such as in reaching, but Dr. Zeiger failed to specify the extent of the limitations. Id..
at 21. The ALJ also reasoned that Dr. Zeiger’s opinion was inconsistent with Plaintiff’s
conservative course of treatment, the functional capacity evaluation, and the wide range of daily
activities that Plaintiff performed. Id. at 21. He also indicated in the same section of his decision
that the conservative care, diagnostic testing, objective findings upon examinations, functional
capacity evaluation, and daily living activities supported the RFC that he determined for Plaintiff.
Id. at 23.
The Court finds that while the ALJ could have provided a more thorough explanation, the
ALJ adequately applied the treating physician rule and substantial evidence supports his decision
to attribute Dr. Zeiger’s opinion little weight. The ALJ correctly noted that while Dr. Zeiger
indicated that Plaintiff was limited in lifting/carrying, reaching, sitting, standing and walking, he
did not provide any detail as to the extent of these limitations, even though the form requested that
he do so. Tr. at 21. For instance, the questionnaire asked Dr. Zeiger if Plaintiff had limitations in
repetitive reaching and Dr. Zeiger indicated that Plaintiff did have such limitations. Id. at 433.
The form then requested that Dr. Zeiger set forth by right and left hand a percentage of time during
an 8-hour that Plaintiff could reach. Id. Dr. Zeiger wrote in that he could not answer that question.
Id. He provided the same lack of detail in setting forth the number of pounds that Plaintiff could
lift and carry, the number of minutes that Plaintiff could sit, and stand/walk, and he failed to check
any of the answers as to whether Plaintiff’s impairments or treatments would cause her to be absent
from work which ranged from never, once or twice per month, three or four times a month, or more
than four times a month. Id.
In addition, the ALJ indicated that while Dr. Zeiger wrote that Plaintiff’s medications may
impact her ability to stay focused, Dr. Zeiger stated that he was uncertain whether this ability was
impacted. Tr. at 21, citing Tr. at 433. Plaintiff did indicate at the hearing that when she was taking
Gabapentin, she could not think or function, but she testified that Dr. Zeiger stopped that
medication and put her on another medication that made her nauseated, so she stopped taking that
medication as well. Id. at 39. She did not indicate that her cancer medication caused attention
problems and she was not taking any pain medications but for over the counter medications. Id.
Dr. Sunbury, the agency examining psychologist, listed no mental health diagnoses or limitations.
Id. at 446. Dr. Sunbury opined that Plaintiff had no limitations in maintaining attention and
concentration although he noted her statement that her physical limitations may impact such an
ability. Id. State reviewing psychologist Goldsmith also found that Plaintiff had no medically
determinable mental impairment. Id. at 72. In addition, the ALJ cited to Plaintiff’s testimony of
her daily activities that negate a finding of inability to sustain attention as she reported that she
drove a car four to five days a week, she shopped, attended flea markets, and helped her sister with
an in-home daycare. Id. at 21-22, citing Tr. at 41-42.
The ALJ also noted Plaintiff’s conservative course of treatment, including physical therapy
that she did not continue, injections which she said moderately improved the pain, and care with
a pain management center which she did not continue. Tr. at 19-20, citing 427, 466, 468-469,
531-532, 538-541, 552-553, 566, 577. He found that this negated Dr. Zeiger’s very restrictive
opinion. Id. at 21. The ALJ further referred to diagnostic testing and objective findings upon
examination. Id. at 23. He cited to findings by Dr. Hart of negative straight leg raising, preserved
range of motion in all directions, no joint tenderness or sensory deficits, and the ability to ambulate
without difficulty. Id. at 20, citing Tr. at 466. The ALJ also cited to updated bone density testing
that showed normal results. Id. at 20, citing Tr. at 524. He also cited to the diagnostic results
showing grade 1 spondylolisthesis at L3-L4 and grade I/II spondylolisthesis at L4-L5 with mild
to moderate and severe canal stenosis. Id. at 19, citing Tr. at 286. He indicated that Plaintiff was
referred to Dr. Diulus, an orthopedic surgeon, following these results and she recommended
physical therapy that Plaintiff discontinued after three sessions. Id. He also cited to Dr. Diulus’
essentially normal clinical examination findings, and to those of Dr. Shin. Tr. at 19, citing Tr. at
The ALJ also noted Plaintiff’s testimony at the hearing that the only
medication that she took for migraines and pain was over the counter medications, which was
inconsistent with her allegations of severe and disabling pain and Dr. Zeiger’s restrictive
limitations. Tr. at 20, citing Tr. at 39. The ALJ cited to some inconsistencies in Plaintiff’s
testimony as she testified that she did not babysit children, but then later indicated that she does
help her sister at her in-home daycare. Id. at 22, citing Tr. at 41. The ALJ also pointed out that
Plaintiff testified that she longer attends flea markets, but then indicated that she just attended one
two weeks ago. Id. at 22, citing Tr. at 42-43. He also noted that Plaintiff indicated in a letter that
she rarely drove, but testified before him that she drove four to five times per week. Id. at 22,
citing Tr. at 41, 253.
These findings by the ALJ meet the criteria of the treating physician rule and constitute
substantial evidence for his decision to attribute little weight to the opinion of Dr. Zeiger.
FUNCTIONAL CAPACITY EVALUATION AND AGENCY PHYSICIAN
Plaintiff also challenges the ALJ’s decision to attribute little weight to the opinions of
agency examining physician Dr. Ghoubrial and Dr. Golestany, and to attribute great weight to the
opinions of Ms. Linnean and Dr. Klyop. ECF Dkt. #17 at 10. However, in doing so, Plaintiff
merely mentions these opinions and cites to the weight that the ALJ gave to each. She does not
provide any factual or legal analysis to support her assertions that the ALJ committed error in the
weight that he attributed to each of these opinions.
Nevertheless, the Court notes that once the ALJ adequately applied the treating physician
rule and provided substantial evidence to support his decision to do so, he could thereafter evaluate
the other opinions of record and determine the weight to give them. Plaintiff asserts that the ALJ
erred in affording little weight to Dr. Ghoubrial’s opinion. Dr. Ghoubrial opined that Plaintiff was
limited to sedentary work. Tr. at 407, 433.
State agency physician Dr. Klyop and physical
therapist Linnean opined that Plaintiff could perform light work. Id. at 74, 620. In attributing little
weight to Dr. Ghoubrial’s opinion, the ALJ explained that Dr. Ghoubrial limited Plaintiff to
sedentary work, yet found that she had no limitations, which was internally inconsistent. Id. at 21.
This Court agrees. Dr. Ghoubrial did indeed make essentially normal clinical findings upon testing
and examination, and yet, without an articulated basis, he limited Plaintiff to sedentary work with
intermittent standing and carrying. Id. at 407. Substantial evidence supports the ALJ’s decision
to attribute little weight to Dr. Ghoubrial’s opinion as to sedentary work.
Regarding Dr. Golestany’s reviewing opinion that Plaintiff was limited to medium work,
the ALJ indicated that the opinion was entitled to little weight because Plaintiff’s allegations, the
functional capacity evaluation, and her treatment notes indicate that she had greater limitations
than those found by Dr. Golestany. Tr. at 22, citing Tr. at 52-56. The ALJ set forth the details of
Plaintiff’s allegations, the functional capacity evaluation, and the treatment notes in his decision
and Plaintiff provides no specific challenge to the ALJ’s decision favorable to her to attribute a
lesser work level than Dr. Golestany. Substantial evidence supports the ALJ’s determination on
In attributing great weight to Dr. Klyop’s agency reviewing opinion finding Plaintiff
capable of light work with additional limitations, Plaintiff again provides no specific challenge to
this determination. Substantial evidence also supports the ALJ’s decision to attribute great weight
to the opinion as the ALJ explained that it was consistent with Ms. Linnean’s functional capacity
evaluation, Plaintiff’s wide range of daily activities that he described in his decision, and Plaintiff’s
conservative treatment, which included only over the counter medications for pain. Tr. at 22.
Finally, substantial evidence also supports the ALJ’s decision to rely upon the findings of
Ms. Linnean’s functional capacity evaluation. Plaintiff provides no specific argument to challenge
the ALJ’s decision as to this issue. Further, although a physical therapist is not an “acceptable
medical source” under Social Security regulations, see 20 C.F.R. §§ 404.1513(d) and 416.913(d),
Ms. Linnean is considered an “other source” and evidence from these sources may be used to show
the severity of a claimant’s impairments and how they affect the RFC. See Social Security Ruling
06-03p. Information from these sources cannot establish the existence of a medically determinable
impairment, but it can provide insight into the impairment’s severity and how it affects the ability
of the claimant to function. Id. Further, “an opinion from a medical source who is not an
“acceptable medical source” may outweigh the opinion of an ‘acceptable medical source,’
including the medical opinion of a treating source.” Id. Here, the ALJ considered this opinion
and in fact explained why he attributed great weight to it. Tr. at 20-21. He explained that the
evaluation findings were consistent with Plaintiff’s treatment courses, the objective examination
findings, and with her wide range of daily activities, all of which he detailed in his decision. Id.
at 19-22. The ALJ also explained why he did not accept Ms. Linnean’s finding that Plaintiff
required a sit/stand opinion, reasoning that Plaintiff’s abilities to attend flea markets, fairs and help
her sister with an in-home daycare negated such a finding. Id. at 21.
STEP FOUR AND INCOMPLETE HYPOTHETICALS
Plaintiff questions the hypothetical individuals presented to the VE by the ALJ and asserts
that the ALJ’s Step Four determination is lacking in substantial evidence because the ALJ relied
upon the VE’s testimony which was based upon incomplete hypotheticals. ECF Dkt. #17 at 13-14.
The Court finds no merit to this assertion since the Court finds that the ALJ did not commit
reversible error in his Step Two analysis concerning Plaintiff’s migraines, and substantial evidence
supports the ALJ’s decision not to include limitations resulting from migraines. Moreover, as
explained above, the Court finds that the ALJ adequately applied the treating physician rule and
substantial evidence supports his decision to attribute little weight to the opinion of Dr. Zeiger and
his decisions as to the weight attributed to the opinions of Drs. Ghoubrial, Golestany, Klyop and
Ms. Linnean. The ALJ is only required to include limitations in his hypothetical individuals that
he found credible. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)
(“It is well established that an ALJ may pose hypothetical questions to a vocational expert and is
required to incorporate only those limitations accepted as credible by the finder of fact”). Plaintiff
has also failed to even identify the limitations that she believes the ALJ failed to include.
For the foregoing reasons, the Court AFFIRMS the ALJ’s decision and DISMISSES
Plaintiff’s complaint in its entirety WITH PREJUDICE.
DATE: February 7, 2017
/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE
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