Phalin v. Commissioner of Social Security Administration
Filing
18
Memorandum Opinion and Order. The final decision of the Commissioner is VACATED and the case is REMANDED for further proceedings consistent with this opinion. Magistrate Judge Thomas M. Parker on 4/2/2018. (Related document 1 ) (O,K)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVSIION
MELINDA PHALIN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
I.
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CASE NO. 1:17-cv-0926
MAGISTRATE JUDGE
THOMAS M. PARKER
MEMORANDUM OF OPINION
AND ORDER
Introduction
Plaintiff, Melinda Phalin, seeks judicial review of the final decision of the Commissioner
of Social Security denying her application for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (“Act”).
The parties have consented to my jurisdiction. ECF Doc. 14.
Because the ALJ did not correctly apply the applicable legal standards, the final decision
of the Commissioner must be VACATED and the case REMANDED for further proceedings.
II.
Procedural History
On March 26, 2014, Phalin applied for disability insurance benefits and supplemental
security income, alleging disability beginning September 1, 2011. (Tr. 142-149) The claim was
denied initially on July 11, 2014 (Tr. 87-92) and after reconsideration on November 3, 2014.
(Tr. 99-110) Phalin requested a hearing on November 13, 2014. (Tr. 111) Administrative Law
Judge (“ALJ”) Susan Giuffre heard the case on February 23, 2016. (Tr. 30-52) The ALJ found
Phalin not disabled on April 8, 2016. (Tr. 14-24) The Appeals Council denied Phalin’s request
1
for review, rendering the ALJ’s decision final. (Tr. 1-3) Phalin instituted this action to
challenge the Commissioner’s final decision.
III.
Evidence
A.
Personal, Educational and Vocational Evidence
Phalin was born on May 25, 1982 and was 33 years old at the time of the hearing. (Tr.
142) She lived with her mother, her mother’s fiancé, and her two small children. (Tr. 36-37)
Phalin completed high school and had past work experience as a cashier/clerk. (Tr. 23, 34-36)
B.
Relevant Medical Evidence 1
On October 14, 2011, Phalin saw Nurse Practitioner Mary Griffith for a refill of her
prescriptions. She complained of pain in her lower abdomen. Phalin reported blood sugar
ranging from 90-150 mg/dl. Ms. Griffith diagnosed diabetes type I, uncontrolled. (Tr. 219-220)
At follow-up appointments with Ms. Griffith in January, April, and May 2012,
Phalin had normal foot examinations. (Tr. 492-493, 496) In May 2012, Phalin learned that she
was pregnant. (Tr. 491)
In October 2012, treatment notes show an A1c level of 4.5. (Tr. 364) A treatment note
from December 2012 states that Phalin was not at risk for falling. (Tr. 385) Phalin had normal
foot examinations with Nurse Griffith in December 2012 and March 2013. (Tr. 489-490) At a
doctor’s appointment in June 2013, Phalin reported that her blood sugars were well controlled
during pregnancy due to persistent nausea and very little eating. (Tr. 333)
1
Phalin raises arguments related only to the contested impairment issues related to her diabetes. Recitation of the
medical records concerning her other impairments is not necessary because she has abandoned issues relating to
other impairments. ECF Doc. 16, Page ID# 1773.
2
Phalin met with Todd Wagner, M.D., on March 28, 2013 complaining of lower extremity
pain and paresthesias. Phalin’s A1c level was 9.2%. Dr. Wagner adjusted Phalin’s dosage of
Gabapentin and counseled her that it might not take effect for two to three weeks. (Tr. 487)
In April 2013, Dr. Wagner referred Phalin to Nurse Practitioner Colleen Pomaro at the
MetroHealth Medical Center’s endocrinology clinic. (Tr. 369-370) Treatment notes indicate
that Phalin was initially diagnosed with type 1 diabetes mellitus in 1996 at age 14. Metformin
had been prescribed after one month due to lack of improvement. Phalin denied having ever
been instructed on diabetic diet or engaging in any regular exercise. (Tr. 370) A foot
examination was normal, with Phalin having intact sensation, normal pulses, and normal
monofilament testing. (Tr. 372) Nurse Pomaro diagnosed type 1 diabetes mellitus of 17 years
duration, complicated by DPN (“diabetic peripheral neuropathy) and changed plaintiff’s insulin
medication. (Tr. 374)
On April 26, 2013, Phalin followed-up with Nurse Pomaro. (Tr. 360) Phalin reported
constant fatigue, numbness and tingling of legs and feet. (Tr. 361) She reported small changes
in diet and decreasing her cigarette use. (Tr. 365) A foot examination was normal. (Tr. 364)
Nurse Pomaro continued the same dose of insulin. (Tr. 365)
In May 2013, Phalin went to the emergency department for chest pain and a rash. (Tr.
345) An EKG was normal. (Tr. 346) Neurologic and extremity examinations were
unremarkable. (Tr. 345) In June 2013, Phalin established care with Dr. Corinna Falck-Ytter at
MetroHealth Medical Center. Phalin reported that she would like to improve her diabetes selfmanagement. She was “most troubled” by severe pain in both feet. (Tr. 333) She carried her
daughter around a lot. (Tr. 334) She reported checking her insulin four times daily and using 10
units of Novolog before she ate and 20 units of Lantus at night. (Tr. 333) Dr. Falck-Ytter
3
diagnosed type 1 diabetes mellitus, with complications, uncontrolled. He counseled Phalin to
stop smoking and to learn carb counting again. He set an A1c goal of less than 7%. (Tr. 335)
Phalin returned to Dr. Falck-Ytter in July 2013 with complaints of ongoing loose stools
and “a lot of foot pain.” Phalin was still smoking but had been working hard on eating better.
(Tr. 327) Dr. Falck-Ytter noted that Phalin was not at risk for falls. (Tr. 326) Phalin did a
“tremendous job of getting her readings improved” and reported that her A1c readings were
around 7% or less now. (Tr. 328) Dr. Falck-Ytter prescribed Lyrica for neuropathy. (Tr. 328))
She referred Phalin to physical therapy. (Tr. 320)
Plaintiff was ambulating independently at physical therapy in August 2013. (Tr. 305)
Phalin returned to Dr. Falck-Ytter on October 15, 2013. Phalin complained of continued
pain in her feet and nausea. (Tr. 270) She also complained of difficulty eating and insulin intake
due to gastroparesis. Dr. Falck-Ytter noted that Phalin had poor diet choices and did not
exercise. Dr. Falck-Ytter recommended that Phalin visit a diabetes website and attend smoking
cessation classes. She also ordered a gastric emptying study. (Tr. 271) The results of the gastric
emptying study were normal with 7% retention after 4 hours. (Tr. 275)
Treatment notes in November 2013 and February 2014 indicate that Phalin was not at
risk for falling. (Tr. 237, 262)
Plaintiff went to the emergency department complaining of lower abdominal pain on
December 10, 2013. Phalin reported that her sugars had been well maintained except for an
incident of low sugar that morning. (Tr. 250) Neurological and extremity examinations were
normal. (Tr. 251) Phalin was discharged with a diagnosis of yeast infection. (Tr. 252)
Phalin went to the emergency room on July 4, 2014 complaining of suprapubic pain after
discovering that she was pregnant. (Tr. 787) Phalin’s gait was documented as steady, without
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assistance. (Tr. 553) Neurological and extremity examinations were normal. (Tr. 789) Phalin
was diagnosed with abdominal pain and pregnancy. (Tr. 790)
On July 7, 2014, Phalin presented for a maternal fetal medicine consultation. (Tr. 561)
She had an elevated A1c level and was counseled that uncontrolled diabetes could cause risks to
her pregnancy and to her long-term health. (Tr. 561) Phalin was not at risk for falls. (Tr. 560)
Phalin maintained good control over her blood sugars during her pregnancy. (Tr. 749, 758-759,
761, 784, 984, 1030, 1103, 1282, 1310, 1342, 1681)
In August 2014, Phalin went to the emergency department complaining of headaches and
right flank pain. She was concerned about developing preeclampsia. (Tr. 618) Phalin reported
that her blood sugar was well controlled. Examination was generally normal and Phalin had a
normal gait. There was no sign of acute abdominal pathology. (Tr. 619)
Phalin went to the emergency department again in early September 2014 complaining of
nausea and vomiting. (Tr. 636) Examination was generally unremarkable except for mild
epigastric pain and abdominal tenderness. (Tr. 638) She was able to move all extremities and
had no focal neurological deficits. (Tr. 638) The attending doctor concluded that Phalin’s
vomiting was pregnancy related. (Tr. 639)
At an obstetrics appointment on September 2, 2014, Phalin reported being independent in
her activities. (Tr. 670)
Phalin returned to the emergency department on September 18, 2014 with complaints of
abdominal pain. (Tr. 689) Examination showed normal range of motion of all extremities and
intact strength and sensation. (Tr. 690) The attending physician believed that Phalin’s
symptoms were likely secondary to cholelithiasis (gallstones.) (Tr. 690)
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On September 26, 2014, Phalin underwent laparoscopic open cholecystectomy (Tr. 728729, 930) after an ultrasound showed cholelithiasis and gallbladder polyp. (Tr. 738)
Treatment notes from October and December 2014 show that Phalin was not at risk for
falls. (Tr. 877, 1049, 1253)
In April 2015, Phalin went to the emergency room with complaints of headache and chest
pain. (Tr. 1620) She reported that her sugars had been high despite being compliant with
insulin. (Tr. 1621) Examination showed full range of motion in her extremities and normal
strength and sensation. (Tr. 1622) Phalin was discharged after her blood sugar returned to
normal. (Tr. 1623)
In October 2015, Phalin began treating with Nurse Practitioner Susan Lyons. (Tr. 1681)
Phalin reported painful neuropathy and retinopathy. She stated that her best glucose levels had
been during her pregnancy when she counted carbohydrates and used NPH and Lispro. Phalin
reported caring for her 9 month old infant at home. (Tr. 1681) Phalin had a normal neurological
exam with no obvious sensory or motor deficits; she had normal reflexes in her upper and lower
extremities. (Tr. 1683) Ms. Lyons noted that Phalin’s diabetes was “uncontrolled with apparent
improvement over the past couple of months.” (Tr. 1683)
Phalin followed up with Nurse Lyons on November 5, 2015. She continued to complain
of painful neuropathy. Neurontin and Lyrica had not alleviated leg pain. (Tr. 1688)
Phalin was referred to Dr. Nicholas Zakov at Retina Associates of Cleveland for diabetic
macular edema (fluid on eye) and blurred vision more in the left eye. (Tr. 824-829) Dr. Zakov
diagnosed diabetes, type I, with ocular complications. (Tr. 827) A fluorescein angiogram
showed leakage in both eyes from patches of microaneurysms. (Tr. 825) Dr. Zakov explained to
Phalin that she had diabetic retinopathy and that this could be a serious, progressive and blinding
6
disease. He recommended focal laser treatment for her blurred vision, which she underwent on
November 20, 2015. (Tr. 825, 827)
On November 12, 2015, Phalin had an initial consultation with Cleveland Clinic
neurologist, Dr. Luzma Cardona. (Tr. 1660) Phalin’s chief complaint was neuropathy. She
reported poor results with Gabapentin, Cymbalta, and Lyrica. (Tr. 1660-1661) The neurological
examination was significant for decreased sensation to light touch, vibration, temperature, and
pinprick to the lower extremities, worse distally, with abnormal proprioception in the right foot.
Phalin had normal muscle tone, bulk and strength in all extremities and a normal gait. (Tr. 1661)
Dr. Cardona diagnosed neuropathy due to unstable diabetes mellitus type 1. (Tr. 1662) He
prescribed Effexor and requested blood work and EMG/NCS. (Tr. 1660)
Phalin met with endocrinologist, Dr. Dorota Whitmer, on November 30, 2015. (Tr.
1671) Phalin complained of painful paresthesias in the lower extremities. (Tr. 1668) Her A1c
measures for August 2015 were 9.4% and 8.3% for November 19, 2015. Phalin denied blurred
or double vision or eye pain. (Tr. 1671) Dr. Whitmer diagnosed uncontrolled type 1 diabetes
complicated by retinopathy, nephropathy, and peripheral neuropathy. (Tr. 1672) Dr. Whitmer
adjusted Phalin’s insulin and prescribed twice daily Metformin. Dr. Whitmer opined that Phalin
would be a candidate for insulin pump therapy. (Tr. 1673)
C.
Opinion Testimony - State Agency Reviewing Physicians
On July 4, 2014, Gary Hinzman, M.D., reviewed Phalin’s records and found that Phalin’s
primary impairment of diabetes mellitus was non-severe. (Tr. 57) In the credibility assessment,
he opined that Phalin’s complaints of numbness and tingling in the feet/legs were “reasonably
expected” given the diagnosis of diabetes mellitus. (Tr. 58)
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On reconsideration, Dr. Diane Manos reviewed Phalin’s records on October 31, 2014 and
agreed that Phalin’s diabetes was non-severe. (Tr. 73) She stated that Phalin’s impairment
“does not significantly limit physical or mental ability to do basic work activities.” (Tr. 74) The
last treatment note reviewed by Dr. Manos was dated October 28, 2014 from MetroHealth
Medical Center. (Tr. 70)
D.
Testimonial Evidence
1.
Phalin’s Testimony
Phalin last worked in 2011 cleaning houses and office buildings. She was fired from
that job because she couldn’t concentrate due to pain. (Tr. 35) Before that, she
worked at Walmart as a cashier. (Tr. 36)
Phalin was no longer able to do anything around the house. (Tr. 36-37)
Phalin was able to do some things for her 3 year-old daughter and 1 year-old son, but
she had help taking care of them. (Tr. 37)
Phalin was able to bathe herself and dress herself, but did little else. (Tr. 38)
Phalin never had a driver’s license and was afraid to drive. She got rides from other
people when she needed to go somewhere. (Tr. 39)
Phalin was diagnosed with diabetes nearly 20 years ago. She had complications with
vision and balance. (Tr. 39, 41, 44)
Despite taking medication, her blood sugars were not well controlled. (Tr. 44)
Phalin had problems with her vision. She had laser surgeries for both eyes, but the
surgeries did not help. (Tr. 39-40)
Phalin started using a rolling walker a week before her hearing. Her physical
therapist told her to start using it because she was having balance problems. (Tr. 41)
Phalin had pain due to neuropathy in her feet, legs and hands. (Tr. 41)
She felt that she would not be able to walk very far. (Tr. 43) She also had pain with
sitting. (Tr. 44) Pain medication was not helping. (Tr. 43)
Phalin also testified that she had been diagnosed with gastroparesis. (Tr. 45)
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2.
Vocational Expert – Jessica Christensen
Jessica Christensen, a vocational expert (“VE”), also testified. (Tr. 47-51)
She was asked to consider a hypothetical individual of Phalin’s age, education, and
past work experience with no documented limitations. (Tr. 49)
Ms. Christensen testified that this individual would be able to perform Phalin’s past
work.
When the hypothetical individual was limited to sedentary work she would be able to
perform the jobs of inspector, final assembler, and charge account clerk. All of these
positions existed in significant numbers in the national economy. (Tr. 50)
IV.
She considered Phalin’s past work to be a cashier, checker. (Tr. 49)
If the hypothetical individual was off task on average 20% of the time, she would not
be able to work. (Tr. 50) The average employer tolerated an employee being off task
no more than 10% of the time. (Tr. 50)
Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as 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.” 42 U.S.C. § 423(d)(1)(a). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy2….
42 U.S.C. § 423(d)(2)(A).
“‘[W]ork which exists in the national economy’ means work which exists in significant numbers either
in the region where such individual lives or in several regions of the country.” 42 U.S.C. § 423 (d)(2)(A).
2
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In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1. If the claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his impairment must be
severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity, is suffering from a severe
impairment that has lasted or is expected to last for a continuous period of at
least twelve months, and his impairment meets or equals a listed impairment,
claimant is presumed disabled without further inquiry.
4. If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if
claimant’s impairment prevents him from doing past relevant work. If
claimant’s impairment does not prevent him from doing his past relevant
work, he is not disabled.
5. If claimant is unable to perform past relevant work, he is not disabled if, based
on his vocational factors and residual functional capacity, he is capable of
performing other work that exists in significant numbers in the national
economy.
20 C.R.F. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). Under this
sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v.
Comm’r of Soc. Sec. 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner
at Step Five to produce evidence that establishes whether the claimant has the RFC and
vocational factors to perform work available in the national economy. Id.
V.
The ALJ’s Decision
The ALJ’s April 8, 2016 decision stated:
1. Phalin met the insured status requirements of the Social Security Act through
December 31, 2015. (Tr. 19)
2. Phalin had not engaged in substantial gainful activity since October 1, 2011,
the alleged onset date. (Tr. 19)
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3. Phalin had the following non-severe impairments: diabetes mellitus, obesity,
diabetic neuropathy, diabetic retinopathy, macular edema, hyperlipidemia,
hypertension, hypothyroidism, celiac disease, gastroparesis and cholelithiasis.
(Tr. 19)
4. Phalin did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments. (Tr. 22)
5. Phalin had the residual functional capacity to perform a full range of work at all
exertional levels with no documented limitations. (Tr. 22)
6. Phalin was able to perform past relevant work as a cashier/checker. (Tr. 23)
The ALJ determined that Ms. Phalin had not been under a disability from October 1, 2011 through
the date of the decision. (Tr. 24)
VI.
Law & Analysis
A.
Standard of Review
This court’s review is limited to determining whether there is substantial evidence in the
record to support the ALJ’s findings of fact and whether the correct legal standards were applied.
See Elam v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003) (“decision must be affirmed
if the administrative law judge’s findings and inferences are reasonably drawn from the record or
supported by substantial evidence, even if that evidence could support a contrary decision.”);
Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). Substantial evidence has been
defined as “more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
The Act provides 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) and 1383(c)(3).
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The findings of the Commissioner are not subject to reversal merely because there exists in the
record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762,
772-3 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535,545 (6th Cir. 1986); see also Her v.
Comm’r of Soc. Sec., 203 F.3d 288, 389-90 (6th Cir. 1999) (“Even if the evidence could also
support another conclusion, the decision of the Administrative Law Judge must stand if the
evidence could reasonably support the conclusion reached.” See Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997). This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984).
The court must also determine whether proper legal standards were applied. If not,
reversal is required unless the legal error was harmless. See e.g. White v. Comm’r of Soc. Sec.
572 F.3d 272, 281 (6th Cir. 2009); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir.
2006) (“Even if supported by substantial evidence, however, a decision of the Commissioner will
not be upheld where the SSA fails to follow its own regulations and where that error prejudices a
claimant on the merits or deprives the claimant of a substantial right.”)
Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough
evidence in the record to support the decision, [where] the reasons given by the trier of fact do
not build an accurate and logical bridge between the evidence and the result.” Fleischer v.
Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir. 1996); accord Shrader v. Astrue, No. 11-13000, 2012 U.S. Dist. LEXIS 157595 (E.D.
Mich. Nov. 1, 2012) (“If relevant evidence is not mentioned, the court cannot determine if it was
discounted or merely overlooked.”); McHugh v. Astrue, No. 1:10-cv-734, 2011 U.S. Dist. LEXIS
141342 (S.D. Ohio Nov. 15, 2011); Gilliams v. Astrue, No. 2:10-CV-017, 2010 U.S. Dist.
12
LEXIS 72346 (E.D. Tenn. July 19, 2010); Hook v. Astrue, No. 1:09-cv-19822010, 2010 U.S.
Dist. LEXIS 75321 (N.D. Ohio July 9, 2010).
B.
Step Two Non-Severe Finding
Phalin argues that the ALJ erred in finding that her diabetes, diabetic neuropathy and
diabetic retinopathy were not severe impairments at step two. At Step Two, 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), 416.920(a)(4)(ii). An impairment is considered non-severe
when it “does not significantly limit your physical or mental ability to do basic work activities.”
20 C.F.R. §§ 404.1521(a), 416.921(a). The Regulations define basic work activities as being the
“abilities and aptitudes necessary to do most jobs,” which 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, co-workers and usual work
situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. §§ 404.1521(b) and 416.921(b).
The regulations provide that if the claimant’s degree of limitation is none or mild, the
Commissioner will generally conclude the impairment is not severe, “unless the evidence
otherwise indicates that there is more than a minimal limitation in your ability to do basic work
activities.” 20 C.F.R. §§ 404.1520a(d), 416.920a(d). The purpose of the second step of the
sequential analysis is to enable the Commissioner to screen out “totally groundless claims.”
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Farris v. Sec'y of HHS, 773 F.2d 85, 89 (6th Cir.1985). The Sixth Circuit has construed the step
two severity regulation as a “de minimis hurdle” in the disability determination process. Higgs v.
Bowen, 880 F.2d 860, 862 (6th Cir.1988). Under a Social Security policy ruling, if an
impairment has “more than a minimal effect” on the claimant's ability to do basic work activities,
the ALJ is required to treat it as “severe.” SSR 96-3p, 1996 SSR LEXIS 10 (July 2, 1996).
The ALJ discussed Phalin’s diabetes and diabetic neuropathy at step two of her decision:
The claimant alleges disability due to diabetes mellitus and diabetic neuropathy.
The claimant testified that she has persistent diabetic nerve pain, which impedes
her ability to concentrate. The claimant testified that diabetic neuropathy causes
her to drop items that she holds with her hands. The claimant’s testimony alluded
to further functional limitations due to diabetic neuropathy in her lower
extremities, including her feet.
The claimant has a diagnosis of uncontrolled type I diabetes. (Exhibit 1F, p. 2).
During June and October 2013, the claimant had A1C measures above eight.
(Exhibit 3F, p. 38). The medical evidence of record indicates that the claimant
has continued to have elevated blood glucose levels throughout the relevant
period. (Exhibit 1F, et seq.). During 2013, the claimant reported some back pain,
but treatment records continually indicate that the claimant reported neuropathic
pain in her feet. (Exhibit 4F, p. 3) However, on April 18, 2013, the claimant
denied any neurological symptoms. (Exhibit 3F, p. 140). On May 17, 2013,
neurological examination was normal. (Id. at 113) In July 2013, the claimant
was determined to not be a risk for falling and she was able to ambulate
independently. (Id. at 73, 94). In August 2013, the claimant reported performing
independently at home, but with difficulty. (Id. at 74) Neurological examination
in December 2013 revealed no evidence of acute focal neurological deficits. (Id.
at 19).
For the rest of the relevant period, the evidence regarding the claimant’s diabetes
and diabetic neuropathy shows much of the same and there is no evidence of any
significant functional limitations. In July 2014, the claimant complained of
numbness in her fingers and toes (Exhibit 6F, p. 30), but in September 2014, the
claimant denied any neurological symptoms. (Id. at 104). In December 2014, it
was again noted that the claimant was not at a risk for falling. (Exhibit 11F, p.
174). Neurological examinations during 2015 indicated no functional deficits.
(Exhibit 11F, pp. 656, 747; Exhibit 13F, pp. 3, 18).
(Tr. 22)
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The ALJ pointed to evidence in the record to support her conclusion that plaintiff’s
diabetes and diabetic neuropathy were not severe. However, there were several records
documenting Phalin’s complaints of pain and symptoms of diabetic neuropathy. (Tr. 363, 333,
1688) In November 2015, treatment notes state that Phalin’s sensation was decreased to light
touch, vibration, temperature and pinprick in lower extremities, worse distally, and
proprioception was abnormal in right foot. (Tr. 1662) The ALJ acknowledged that Phalin had
continued to have elevated blood glucose levels throughout the relevant period. (Tr. 20) This
alone suggests that Phalin’s diabetes was uncontrolled and may have had an impact on her ability
to work. And the ALJ was not completely accurate in her recitation of the records supporting her
decision. For example, the ALJ stated that Phalin denied any neurological symptoms on April
18, 2013. However, the record cited by the ALJ states that Phalin was positive for “numbness or
tingling of feet.” (Tr. 372)
The ALJ relied heavily on records from 2013. She also relied on the opinions of the state
agency reviewing physicians who reviewed records through October 2014. But later records
reviewed by the ALJ show that Phalin’s A1c levels were uncontrolled and suggest that Phalin’s
complaints of neuropathic pain were worsening. (Tr. 1688, 1660-1661, 1668)
Phalin’s testimony at the administrative hearing also supported a finding that her diabetes
and diabetic neuropathy were severe. She used a rolling walker at the hearing. (Tr. 41) She
stated that she was unable to walk very far, concentrate, or to sit for long periods. (42, 44)
The ALJ determined that Phalin’s statements regarding the intensity, persistence and
limiting effects of these symptoms was not entirely consistent with the medical evidence and
other evidence in the record “for the reasons explained in this decision.” (Tr. 22) However, the
ALJ did not point to any specific records supporting her credibility determination. Social
15
Security Ruling 96-7p also requires the ALJ to explain her credibility determinations in her
decision such that it “must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual's statements and the
reasons for that weight.” Id. In other words, blanket assertions that the claimant is not
believable will not pass muster, nor will explanations as to credibility which are not consistent
with the entire record and the weight of the relevant evidence. Id. Credibility determinations are
for the ALJ, and not the reviewing court. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th
Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990); Kirk v. Sec'y of Health &
Human Servs., 667 F.2d 524, 538 (6th Cir. 1981). Nonetheless, in determining whether Phalin
met the de minimis burden at step two of the sequential evaluation, her testimony, even if not
fully credible, supported a finding that her diabetes and diabetic neuropathy were severe.
Medical records and Phalin’s testimony showed that these impairments were having more than a
minimal impact on her basic work activities such as walking.
Once an ALJ determines that one or more of the claimant’s impairments are severe, she
must consider all the claimant’s severe and non-severe impairments in the remaining steps of the
sequential analysis. Because the ALJ determined that Phalin’s impairments were all non-severe,
she did not fully consider them separately or in combination in the remaining steps of the
sequential analysis. The ALJ determined that Phalin had the residual functional capacity to
perform a full range of work at all exertional levels with no documented limitations. (Tr. 22)
However, had the ALJ properly determined that Phalin’s diabetes and diabetic neuropathy were
severe impairments, her analysis at the remaining steps of the sequential evaluation would likely
have been different.
16
The ALJ erred in finding that Phalin’s diabetes and diabetic neuropathy were not severe.
The court cannot find this error harmless because nothing in the ALJ’s decision indicates that
these impairments were considered in formulating Phalin’s RFC. Thus, the ALJ failed to follow
the proper legal standards and remand is necessary.
VII.
Conclusion
Because the ALJ did not correctly apply the applicable legal standards and because the
ALJ’s reasoning did not build an accurate and logical bridge between the evidence and the
results of her decision, the final decision of the Commissioner is VACATED and the case is
REMANDED for further proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated: April 27, 2018
Thomas M. Parker
United States Magistrate Judge
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