Rojas Figueroa v. Commissioner of Social Security

Filing 12

Report and Recommendation that the Commissioner's final decision denying Plaintiff Rosalie Rojas Figueroa's applications for DIB and SSI be affirmed. Related Doc. 1 . Objections to Report & Recommendation due by 12/6/2024. Magistrate Judge Reuben J. Sheperd on 11/22/2024. (D,JJ)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROSALIE ROJAS FIGUEROA,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
I.

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Case No. 1:24-cv-00282
JUDGE BENITA Y. PEARSON
MAGISTRATE JUDGE
REUBEN J. SHEPERD

REPORT AND RECOMMENDATION

Introduction
Plaintiff, Rosalie Rojas Figueroa (“Rojas Figueroa”), seeks judicial review of the final

decision of the Commissioner of Social Security, denying her applications for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of
the Social Security Act. This matter is before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3),
and Local Rule 72.2(b). Because the ALJ applied proper legal standards and reached a decision
supported by substantial evidence, I recommend that the Commissioner’s final decision denying
Rojas Figueroa’s applicaitons for DIB and SSI be affirmed.
II.

Procedural History
Rojas Figueroa filed for SSI on September 7, 2021, and DIB on September 10, 2021,

alleging a disability onset date of January 1, 2020. (Tr. 22). The claims were denied initially and
on reconsideration. (Tr. 142, 147, 159, 162). She then requested a hearing before an
Administrative Law Judge. (Tr. 168). Rojas Figueroa, represented by counsel, and a vocational

expert (“VE”) testified before the ALJ on April 10, 2023. (Tr. 50-79). On April 26, 2023, the
ALJ issued a written decision finding Rojas Figueroa not disabled. (Tr. 19-43). The Appeals
Council denied her request for review on December 20, 2023, making the hearing decision the
final decision of the Commissioner. (Tr. 1-3; see 20 C.F.R. §§ 404.955, 404.981). Rojas
Figueroa timely filed this action on February 14, 2024. (ECF Doc. 1).
III.

Evidence
A.

Personal, Educational, and Vocational Evidence

Rojas Figueroa was 40 years old on the alleged onset date, making her a younger
individual according to Agency regulations. (See Tr. 41). She has limited education. (See id.). In
the past, she worked as a fast-food manager, home health aide, and shipping and receiving clerk.
(Tr. 72-73).
B.

Relevant Medical Evidence 1
1.

Physical Health

Throughout the course of Rojas Figueroa’s medical appointments, encounter notes
indicate Rojas Figueroa was alert and oriented with normal mood, affect, and behavior. (Tr. 405,
407-08, 414, 417, 553, 561, 566, 569, 778, 784, 952, 970, 1031, 1054, 1185). It was also
consistently noted that Rojas Figueroa’s musculoskeletal system had a normal range of motion.
(Tr. 405, 407, 414, 417, 550, 561, 666, 774, 784, 951, 1030, 1053-54, 1180). Any record
indicating different findings will be detailed below.

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Rojas Figueroa only raises error with respect to the ALJ’s evaluation of her migraines, pain,
obesity, and cane usage. (See ECF Doc. 8). I therefore limit the review of the medical record
only to the evidence relevant to those claims. Any arguments concerning her other physical or
mental impairments are deemed waived. See Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th
Cir. 2013).
2

On April 29, 2020, Rojas Figueroa presented to an appointment with Amy Ebbitt, APRN,
CNP. (Tr. 415). One of Rojas Figueroa’s chief complaints was headaches with sensitivity to
light; the pain was worse when looking left or right. (Id.). Her headache frequency had slightly
elevated from the previous month, but Rojas Figueroa reported that the headaches resolve with
Imitrex and she only occasionally needed to take Excedrin. (Tr. 415-16). She was prescribed
Sumatriptan 100 mg as needed for migraines. (Tr. 417). Rojas Figueroa’s body mass index
(“BMI”) was noted at 47.63, but she reported that she had lost some weight recently. (Tr. 416).
She was listed as obese with no signs of distress and her musculoskeletal system had a normal
range of motion. (Tr. 417). She was alert and oriented with normal mood, affect, and behavior.
(Id.). CNP Ebbitt counseled Rojas Figueroa on her BMI, planned a follow up, and referred her to
Dietetics Service. (Id.).
During a May 29, 2020 follow up with CNP Ebbitt, Rojas Figueroa reported that she had
not met with the dietician or followed a calorie restrictive diet, but had been losing weight owing
to her increased activity. (Tr. 412-13). Rojas Figueroa also reported increased neck pain that
radiated to her right shoulder, worse at bedtime. (Tr. 413). Upon examination, Rojas Figueroa’s
neck had a normal range of motion. (Tr. 414).
On February 7, 2021, Rojas Figueroa presented to the emergency room after falling down
three stairs. (Tr. 551). Encounter notes indicate that after the fall she was able to ambulate and
bear weight. (Id.). She had normal gait and ambulated with a steady gait out of the emergency
department. (Tr. 553; 558).
At a March 9, 2021 hypertension follow up appointment with Katy Foutz, RN, Rojas
Figueroa reported that her “head wants to explode-temple areas/frontal[.]” (Tr. 409). She
reported relief after applying Vicks and drinking a lot of water. (Id.). RN Foutz provided

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hypertension education and encouraged effort toward healthy eating and increased activity. (Tr.
410).
Rojas Figueroa presented to CNP Ebbitt on April 14, 2021 with concerns of ongoing
shoulder pain and progressive lower back pain. (Tr. 405). She reported trouble sleeping as a
result because the pain increased with periods of inactivity or sitting. (Id.). Flexeril and Tramadol
were either ineffective or minimally effective to treat pain. (Tr. 406). Upon examination, CNP
Ebbitt noted that Rojas Figueroa looked uncomfortable but not in distress. (Tr. 407). While
examinations indicated a normal range of motion and gait, Rojas Figueroa reported arthralgias,
back pain, gait problems, and myalgias. (Id.).
On June 3, 2021 Rojas Figueroa reported to CNP Ebbitt numbness in her legs and an
inability to walk or sit for long periods. (Tr. 404). The numbness resulted in her falling twice.
(Id.). She also complained of worsening lower back pain that radiated through her hip to her knee
and sometimes beyond. (Id.). She reported the pain as a 5/5. (Id.). She further reported that her
neck pain was improving with physical therapy and injections. (Id.). Rojas Figueroa was referred
to physical therapy and prescribed Gabapentin 100 mg for pain. (Tr. 405).
On July 1, 2021, Rojas Figueroa presented to the emergency room with complaints of
right knee pain without injury. (Tr. 504). The pain was worse with weight bearing and extension.
(Tr. 505). She expressed some internal knee instability when walking. (Tr. 504). Upon
examination, her knee had no swelling, deformity, erythema, or ecchymosis. (Tr. 506). She had
normal range of motion but some tenderness. (Id.). She was able to rise from the seated position
and ambulate but was mildly antalgic. (Id.). She was alert and oriented with cooperative
behavior. (Id.).

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At a July 7, 2021 appointment with Kim Stearns, M.D., Rojas Figueroa complained of
right knee pain. (Tr. 504). She experienced pain going up and down stairs and getting up from a
seated position. (Id.). Dr. Stearns noted that x-rays showed a very large intra-articular loose
body just posterior to the notch. (Tr. 504). The knee pain was treated a week later with Marcaine
1cc and Depo-Medrol injections. (Tr. 500).
Rojas Figueroa presented for an appointment with CNP Ebbitt on September 24, 2021,
with a complaint of continuous overall body aches that caused her to leave her job, as well as
right arm tingling. (Tr. 782). CNP Ebbitt prescribed Gabapentin 300 mg for pain. (Tr. 784).
Encounter notes also indicate that Rojas Figueroa has a history of major depression with suicidal
ideation that began when she was a teenager with the most recent episode being in 2004. (Tr.
783). Rojas Figueroa had been taking Zoloft but discontinued taking it due to improvement and
nausea. (Id.). CNP Ebbitt referred her to behavioral health counseling and prescribed Duloxetine
20 mg. (Tr. 784).
On December 3, 2021, Rojas Figueroa underwent an arthroscopy on the right knee and
synovial debridement performed by Dr. Stearns. (Tr. 689).
Rojas Figueroa presented to the emergency room on December 5, 2021, complaining of
left side facial pain, headache, and hypertension. (Tr. 673). Rojas Figueroa presented using a
walker due to her recent knee surgery and right leg weakness associated with the surgery. (Id.).
Rojas Figueroa’s headache began on December 3, 2021, and was on the left side of her forehead
and temple with sharp pain. (Tr. 673, 679). This headache was different than her typical
migraines as those tended to affect the front of her head with throbbing pain. (Tr. 673). She was
also experiencing left arm numbness and hand weakness. (Tr. 679). The oxycodone she was
taking for her knee provided no relief to her headache. (Tr. 673). She did not take her Imitrex out

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of fear that it would interfere with the oxycodone. (Tr. 674). The treating physician noted that
this was a complex migraine exacerbated by Rojas Figueroa’s underlying anxiety. (Tr. 679).
There were no objective signs of weakness in her upper extremities; upon examination she had
equal grip strength bilaterally, equal push pull bilaterally, was able to hold both arms up for 10
seconds without any noted trauma, and strength with dorsal and plantar flexion bilaterally was
listed as 5/5. (Tr. 676). A CT scan showed no acute abnormality, but Rojas Figueroa was going
to be admitted to undergo an MRI. (Tr. 679). Rojas Figueroa left the emergency room, against
medical advice, stating she had been waiting too long for a floor bed. (Tr. 684).
Rojas Figueroa came back to the emergency room on the advice of her primary care
physician on December 6, 2021. (Tr. 664). She presented with continued intermittent headache
and left side weakness. (Id.). A CTA of her head and neck revealed patent intracranial arterial
vasculature, without proximal occlusion or focal stenosis and stenosis; tiny 1.5mm inferolaterally
directed prominence from the right M1 segment favored to reflect small infundibulum. (Tr. 668).
There was no evidence of aneurysm otherwise. (Id.). Given this CTA impression, Rojas Figueroa
was discharged and instructed to follow up with neurology. (Tr. 670).
At a December 8, 2021 appointment with Brian Bouchard M.D., Dr. Bouchard reviewed
the CTA from Rojas Figueroa’s emergency room visit. (Tr. 775). Dr. Bouchard noted that the
only abnormality was a slightly elevated white blood count which was possibly a viral syndrome
and noted no red flag symptoms. (Id.). He emphasized hydration, rest, and a low stimulation
environment for a few days. (Id.).
On March 21, 2022, Rojas Figueroa saw Anne Wise, M.D. for ongoing lower back pain
that radiated down her right leg. (Tr. 970). Rojas Figueroa reported pain in her left leg and when

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sitting and standing. (Id.). Rojas Figueroa requested a cane. (Id.). Dr. Wise prescribed a cane as
needed, Prednisone 50 mg, and a 5% Lidocaine pouch. (Tr. 971).
On March 20, 2022, Rojas Figueroa presented to the emergency room for bilateral foot
pain and burning. (Tr. 1051-52). After obtaining x-rays, the attending physician’s impression
was degenerative changes, prominent spurs of the calcaneus. (Tr. 1054).
Rojas Figueroa started attending physical therapy for her back and knee pain on March
29, 2022. (Tr. 1047). Her pain interfered with sitting, walking, standing, rising, climbing stairs,
bending, heavy exertion, lifting, working, and sleeping. (Id.). Her therapy prognosis was good
but may be limited due to the chronic nature of impairments and limited tolerance to activity.
(Id.). During this appointment, her gait was antalgic with decreased cadence. (Tr. 1050). Rojas
Figueroa attended aquatic physical therapy twice a week for eight weeks. (Tr. 1011; 1015; 1019;
1024; 1026; 1034; 1036; 1044). During her May 2, 2022 session, Rojas Figueroa fell and was
advised by her doctor to use heat and cold packs as needed on her knee and ankle. (Tr. 1034).
Following the fall, Rojas Figueroa presented to her May 12, 2022 appointment with a cane. (Tr.
1027). Notes from her June 9, 2022 appointment indicate that she demonstrated no improvement
in rising from a chair, standing, walking, stair negotiation, bending, lifting, physical activities,
and recreational activities with a prognosis of multiple co-morbidities. (Tr. 1019). She had made
minimal improvement in rising from a chair and walking by her June 29, 2022 appointment. (Tr.
1012).
On April 20, 2022, Rojas Figueroa established care with David A. Harrison, PA-C, for
sacral area pain. (Tr. 1040). Her gait was noted as antalgic. (Tr. 1043). PA-C Harrison prescribed
Medrol and Tizanidine. (Id.).

7

On May 11, 2022, Rojas Figueroa saw Dr. Stearns complaining of knee pain after falling.
(Tr. 1032). Upon examination, Dr. Stearns noted the right knee had a trace effusion with mild
crepitation and guarding in motion 0 to 110 degrees. (Id.). X-rays showed mild degenerative
changes but no fracture. (Id.). Dr. Stearns gave Rojas Figueroa an injection of Marcaine and
Depo-Medrol. (Id).
That evening, Rojas Figueroa presented to the emergency room for swelling of her left
foot. (Tr. 1029). On examination, there was no obvious swelling to the left foot, ankle, or lower
leg but Rojas Figueroa was complaining of pain in those areas. (Tr 1031). She was told to rest,
elevate her foot, and take Tylenol. (Id.).
At a June 2, 2022 follow up appointment with PA-C Harrison, Rojas Figueroa reported
no improvement in pain after six weeks of physical therapy. (Tr. 1022). PA-C Harrison ordered
an MRI for possible injection planning. (Tr. 1024).
During a June 8, 2022 appointment with Katy Foutz, RN, Rojas Figueroa reported her
pain was stable. (Tr. 947). For pain, she took Percocet, used hot and cold compresses, exercised,
and attended physical therapy. (Id.).
Rojas Figueroa presented for an appointment with CNP Ebbitt on July 12, 2022. (Tr.
1275). She reported having a severe migraine for six days that throbbed on the right side of her
head. (Id.). She also had nausea without vomiting and photophobia. (Id.). She was prescribed
Trizatriptan 10 mg for her migraine and instructed to return the next day if migraine persisted.
(Tr. 1276).
Rojas Figueroa saw PA-C Harrison on July 14, 2022. (Tr. 1255). PA-C Harrison noted
mild bilateral hypertrophic facet arthropathy contributing to no more than mild right and no
substantial left foraminal narrowing, patent spinal canal at L4-L5 and mild bilateral hypertrophic

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facet arthropathy contributing to no more than mild right and no substantial left foraminal
narrowing, patent spinal canal at L5-S1. (Tr. 1266).
Rojas Figueroa presented to the emergency room on July 30, 2022, complaining of knee
pain. (Tr. 1177). Her symptoms were suspected to be secondary to Baker’s cyst versus chronic
symptoms from large osteochondral body present in posterior joint space. (Tr. 1186-87). She was
advised to rest, elevate, and use NSAIDs and ice before being discharged. (Tr. 1187).
Rojas Figueroa presented for an appointment with Dr. Stearns on August 17, 2022
regarding her knee. Upon exam, Dr. Stearns noted motion of 0 to 130 degrees, mild joint line
tenderness, no significant swelling in popliteal area or instability, and negative Lanchman and
McMurray tests. (Tr. 1153). Dr. Stearns prescribed Daypro 600mg and gave her an injection of
Marcaine and Depro-Medrol. (Id.).
Rojas Figueroa saw PMHNP Smith for medication management on August 18, 2022. (Tr.
1310). She reported worsening depression and anxiety due to familial deaths, financial hardship,
and chronic pain. (Tr. 1311). Rojas Figueroa was alert with appropriate insight and judgment but
had depressed and anxious mood. (Tr. 1312).
On August 31, 2022, Rojas Figueroa saw Kush Goyal, M.D. for an intra-articular facet
injection bilaterally at L4-L5 and L5-S1. (Tr. 1139). After the injection, Rojas Figueroa reported
her pain decreased form a seven to zero. (Tr. 1140).
Rojas Figueroa saw RN Foutz for a pain review on September 12, 2022. (Tr. 1358).
Rojas Figueroa reported her migraine medication, Maxalt, was not working to alleviate her
migraines. (Tr. 1359). She had a migraine on September 9, 2022, and took Percocet to obtain
relief. (Id). She reported knee and back pain daily as well as pain in her hands and migraines that

9

come and go. (Id.). RN Foutz noted that no treatments have helped Rojas Figueroa’s pain outside
of occasional use of Percocet. (Tr. 1364).
At a September 15, 2022 medication management appointment, Rojas Figueroa reported
back and leg pain contributed to her low mood and lack of motivation. (Tr. 1384). Her general
health was labeled as “generally poor,” and her reported mood was depressed and anxious. (Tr.
1380-81). Rojas Figueroa also reported recent memory impairment. (Tr. 1381).
Rojas Figueroa presented to an appointment with CNP Ebbitt regarding her migraines on
September 23, 2022. (Tr. 1645). She reported that her medication was not helping, and she was
getting migraines “on and off.” (Id.). CNP Ebbitt referred her to neurology and prescribed
Eletriptan 40 mg. (Tr. 1646).
Rojas Figueroa began physical therapy on September 30, 2022, with an anticipated end
date of November 29, 2022. (Tr. 1613). Her chief complaint was back and right knee pain. (Tr.
1613). Notes indicate that she was a fall risk, and that she fell on the stairs a few days before the
appointment. (Tr. 1613-14). Her prognosis for therapy was fair due to limited tolerance to
activity and the chronic nature of her impairments. (Tr. 1613). She entered therapy using a quad
cane, and her gait was antalgic with decreased cadence. (Tr. 1617). Her therapy goals included
improving her lumbar range of motion to within normal limits, increase lower extremity strength,
reduce pain, walk stairs without falling, proper posture, and improve 10-meter walk time. (Tr.
1605-06).
On November 11, 2022, Rojas Figueroa presented to Nicole Daimer APRN-CNP for
migraines. (Tr. 1541). She reported having over six migraines per month that lasted 48 to 72
hours. (Tr. 1566). Her migraines were located bilateral/frontal temporal and left occipital. (Id.).
The left occipital location was new as was intermittent ringing in her right ear. (Id.). She

10

experienced photophobia, nausea, and vomiting with her migraines and her symptoms were
worse with activity. (Id.). She was able to stand without upper body assistance. (Tr. 1570). CNP
Daimer ordered an MRI and MRA which showed few scattered punctate foci of T2/FLAIR
hyperintensity in the supratentorial white matter, which were nonspecific, and overall mild in
extent, and predominantly in the bilateral frontal subcortical white matter. (Tr. 1489). No acute
intracranial abnormality was found. (Tr. 1491). There was mild cervical spine degenerative
changes as detailed, without high-grade canal or foraminal narrowing, and no significant cord
compression or cord signal abnormality. (Id.).
On November 28, 2022, Rojas Figueroa presented to a medication management
appointment with NP Smith. (Tr. 1766). Her depression, anxiety, and pain had worsened with
stress exacerbated by financial hardships. (Tr. 1768-69). NP Smith continued her medications.
(Tr. 1769).
She presented for an appointment with CNP Ebbitt on January 20, 2023. (Tr. 1833). She
reported that she felt her anxiety had improved but there was still dysfunction regarding finances
and physical limitations. (Tr. 1833-34). Encounter notes indicate that Rojas Figueroa had been
referred to neurology for her migraines but that she had not yet scheduled an appointment. (Tr.
1834). Her gait was marked as abnormal, antalgic. (Id.).
Rojas Figueroa saw PA-C Harrison on January 23, 2023, for a six month follow up
appointment regarding her lumbar back and right leg pain. (Tr. 1426). She reported feeling the
same with unchanged symptoms. (Id.). PA-C Harrison noted that Rojas Figueroa’s MRI showed
no neuro compressive pathology, increased her Gabapentin prescription, referred her to physical
therapy, and prescribed Mobic. (Tr. 1428).

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2.

Mental Health

Rojas Figueroa initiated mental health care with Natalie Stark LISW-S on November 4,
2021, and continued through February 10, 2023. (Tr. 772, 775, 777, 1288, 1325, 1633, 1684,
1752, 1789, 1805, 1818, 1851, 1883). Throughout her sessions, Rojas Figueroa explained that
she felt depressed as a result of her ongoing pain. (Tr. 777, 1325, 1338, 1755, 1792, 1821, 1886).
She also expressed continued struggles with migraines and stress related to finances. (Tr. 1288,
1325, 1854). At times, she became tearful when discussing her health issues and pain. (Tr. 1687).
During her December 20, 2022 session, she reported decreased energy to “fight” and felt as
though she was “being pushed to snap” with her struggles with pain and depression. (Tr. 1806).
Despite frequently reporting passive death wishing thoughts, she also reported that she had no
plan or intent because of her mother and children. (See e.g. Tr. 1806). LISW Stark noted that
Rojas Figueroa was alert throughout her sessions with appropriate or fair judgment and insight.
(Tr. 773, 776, 780, 1325, 1338, 1633, 1686, 1754-55, 1791, 1805-06, 1821, 1854, 1886). Rojas
Figueroa always reported her mood as depressed, and often also reported being anxious, angry,
worried, and/or irritated. (Tr. 773, 775, 1288, 1325, 1338, 1633, 1686, 1754-55, 1791, 1805-06,
1820-21, 1854, 1886).
Rojas Figueroa saw Alenna Smith, PMHNP, on April 26, 2022 for medication
management. NP Smith prescribed Buspar 10 mg for anxiety, and Trazadone 50 mg for
insomnia. (Tr 965).
At a June 30, 2022 medication management appointment with NP Smith, Rojas Figueroa
reported worsening depression and anxiety as a result of stress from financial hardship due to her
inability to work because of her health issues. (Tr. 943). Rojas Figueroa was alert and had
appropriate judgment, insight, and demeanor during this encounter. (Tr. 944).

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Rojas Figueroa saw NP Smith for medication management on November 2, 2022. (Tr.
1699). She reported worsening depression, anxiety, and pain. (Tr. 1700). She reported depending
on a cane “many days.” (Tr. 1701). She also reported her new migraine medication was
effective. (Id.). Her reported mood was depressed, nervous, anxious and worried, but she was
alert with appropriate judgment and insight during the appointment. (Tr. 1702). NP Smith
continued all of Rojas Figueroa’s prescriptions. (Tr. 1705).
C.

Medical Opinion Evidence
1.

State Agency Reviewers

On December 22, 2021, state agency reviewer, Vicki Warren, Ph.D., reviewed Rojas
Figueroa’s mental health records. (Tr. 104). Dr. Warren found that Rojas Figueroa was capable
of routine tasks in a setting not requiring close focus or concentration, superficial social
interaction with familiar coworkers and supervisors, and routine tasks in a predictable setting
where changes are infrequent and easily explained. (Tr. 105). On reconsideration, Courtney
Zeune, Psy.D. agreed with these limitations. (Tr. 139).
Mehr Siddiqui, M.D., reviewed Rojas Figueroa’s health records at the initial level on
December 16, 2021. (Tr. 104). Dr. Siddiqui noted that Rojas Figueroa could occasionally lift
and/or carry 20 pounds and frequently lift and/or carry 10 pounds; stand and or walk and sit six
hours in an eight-hour workday; frequently climb ramps and stairs; never claim ladders, ropes, or
scaffolds, and she would have no limitation with balancing, stooping, kneeling, crouching, or
crawling. (Tr. 103). Further, she was limited in her right upper extremity to occasionally
reaching in front and or laterally and overhead, but unlimited with handling, fingering, and
feeling. (Tr. 104). She should further avoid concentrated pulmonary irritants and avoid all

13

exposure to unprotected heights. (Id.). On reconsideration, Indria Jasti, M.D. agreed with these
findings. (Tr. 124).
2.

Treating Source Opinions

CNP Ebbitt filled out a Medical Source Statement on May 27, 2022. (Tr. 930-33). The
statement indicates that CNP Ebbitt treated Rojas Figueroa since August 2019 and saw her every
one or two months. (Tr. 930). Rojas Figueroa’s diagnoses were listed as fibromyalgia, cervical
spine stenosis, osteoarthritis in her right knee, hypertension, and pre-diabetes with a poor
prognosis. (Id.). CNP Ebbitt noted that Rojas Figueroa had pain in multiple joints and the spine,
fatigue, and reactive depression. (Id.). According to this statement, CNP Ebbitt found that Rojas
Figueroa could sit for 60 minutes at a time and stand for 10 minutes at a time, she did not need to
elevate her legs, she required a cane at all times due to imbalance, pain, and weakness, the cane
was needed for both standing and walking. She also found that Rojas Figueroa could
occasionally lift and carry less than 10 pounds, rarely lift and carry 10 pounds, and never lift and
carry 20 or 50 pounds. (Tr. 932). Further, she noted significant limitation with handling or
fingering, finding Rojas Figueroa could use her right and left hands 100% of the workday to
grasp, turn, and twist objects, as well as use her fingers on both hands for fine manipulations.
(Id.). However, she noted that Rojas Figueroa could only use her right and left arms to reach in
front of her 10% of the workday and could not use either arm to reach overhead. (Id.). As to an
eight-hour workday, CNP Ebbitt noted a limitation of sitting for “about 4 hours” and
standing/walking for “less than 2 hours.” (Tr. 931). Rojas Figueroa would be incapable of even
low stress work because “major depression and anxiety make work at this time impractical.” (Tr.
932-33). According to CNP Ebbitt, Rojas Figueroa would also be off task 25% or more per day.
(Tr. 932). CNP Ebbitt concluded that Rojas Figueroa’s impairments as demonstrated by signs,

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clinical findings, and laboratory or test results were reasonably consistent with the symptoms and
functional limitations described. (Tr. 933).
LISW Stark completed a Mental Impairment Questionnaire on April 28, 2022, based on
her weekly treatment of Rojas Figueroa since November 2021. (Tr. 1083-84). LISW Stark listed
Rojas Figueroa’s diagnoses as severe episodes of recurrent major depressive disorder without
psychotic features; Generalized Anxiety Disorder; and Insomnia due to other mental disorder.
(Tr. 1082). For those diagnoses, Rojas Figueroa was prescribed Cymbalta 60mg, Buspar 10mg,
and Trazodone 50mg. (Id.). LISW Stark’s clinical findings that demonstrate the severity of Rojas
Figueroa’s impairments and symptoms include decreased motivation, feeling uneasy and easily
overwhelmed, suicidal ideations without plan, insomnia, fatigue/no energy, hopelessness. (Id.).
Rojas Figueroa’s prognosis was poor. (Id.). The impairments had lasted or were expected to last
at least 12 months, would cause her to be absent from work five to six days per week, and would
cause her to be off task 80% of the workday. (Tr. 1082-83). Of the various work related and dayto-day activities listed, LISW Stark noted that Rojas Figueroa would be unable to meet
competitive standards on the following tasks: maintaining attention and concentration for
extended periods, managing regular attendance and be punctual within customary tolerances,
completing a normal workday and workweek without interruptions from psychologically based
symptoms, and performing at a consistent pace without an unreasonable number and length of
rest periods. (Tr. 1083).
3.

Consultative Examination

Rojas Figueroa was referred for a psychological evaluation with Michael Faust, Ph.D.,
“to assess her mental status and the existence of any psychological condition that would impair
her ability to function on a daily basis and in an employment setting.” (Tr. 801). The evaluation

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notes that Rojas Figueroa responded to all questions with fairly detailed and articulate answers.
(Tr. 804). She could not perform serial 7’s but did correctly perform serial 3’s. (Tr. 805).
However, she would become agitated and tearful when discussing her health issues. (Tr. 804).
She was withdrawn yet calm during the exam, and Dr. Faust noted that her mood appeared
depressed. (Id.). During the exam she was oriented to person, place, and time, and she
understood the purpose of the exam. (Id.). Rojas Figueroa expressed frustration with depending
on her daughter for help cooking and cleaning. (Tr. 805). Regarding leaving the house, she stated
that she does not see friends, sees her mother once a week, and goes to the grocery store with her
daughter every other week. (Id.). Rojas Figueroa expressed being depressed due to her
deteriorating health and changes in her ability to perform tasks. (Id.).
Dr. Faust noted that Rojas Figueroa’s self-report was consistent with an adjustment
disorder with mixed anxiety and depressed mood, secondary to her health issues. (Id.). She did
not exhibit any limitations understanding simple or complex instructions. (Tr. 806). However,
Dr. Faust noted that she may have difficulty remembering verbally presented instructions due to
her depression based on her performance during the exam. (Id.). She did exhibit difficulty with
attention, concentration, persistence, and pace. (Id.). She had difficulty with task competition and
sustained attention due to presenting depressed and emotional. (Id.). Rojas Figueroa struggled
with significant adjustment difficulties including anxiety and depression, which Dr. Faust found
would impact her ability to interact with others and respond to supervision and coworkers. (Id.).
Finally, Dr. Faust noted that Rojas Figueroa could be expected to have some difficulty
responding appropriately to work pressures but had the mental ability to manage her funds
should she be awarded benefits. (Tr. 807).

16

D.

Administrative Hearing Evidence

Rojas Figueroa lives in a two-story house with her adult son. (Tr. 57). She has a secondfloor bedroom. (Tr. 57). Rojas Figueroa is 5’4” tall and weighs 287 pounds. (Tr. 57). She
completed the tenth grade in school. (Tr. 58). She has a driver’s license but cannot drive for
longer than 30 to 40 minutes at a time. (Tr. 57).
When asked to describe a typical day, Rojas Figueroa stated when she wakes up, she
struggles to get out of bed due to pain. (Tr. 61). She only sleeps two to three hours per night
leading her to have low energy and concentration. (Tr. 69). It takes her significant time to get out
of bed, get into the shower, and get dressed. (Tr. 61). The bathtub in her home is “high” making
it difficult to lift her knee to get into the shower when she is in pain. (Tr. 68). When her pain is
exceptionally bad, she requires a chair in the shower. (Id.). She stated she cannot cook on the
stove because her hands go numb which has led to her burning herself. (Tr. 61). She also cannot
stand for a long period of time to prepare food. (Tr. 67). As a result, everything she eats is either
microwavable or simple to prepare like cereal. (Tr. 61). She can do chores, but when she helps
with the laundry she has to “confine” herself to the basement because she “can’t keep going up
and down the stairs[.]” (Tr. 62). She also helps with doing the dishes but cannot stand for too
long. (Id.). She described 30 minutes as being too long to stand to do dishes. (Tr. 67). Sweeping
and vacuuming are difficult because of pain in her legs and the chores require her to bend her
back and knee. (Tr. 67-68).
Rojas Figueroa explained that she is right-handed but struggles to use her right hand due
to pain, causing her to attempt tasks with her left hand. (Id.). As a result of needing to use her
non-dominant hand she struggles with doing “anything” including combing her hair and eating.
(Tr. 67).

17

She feels pain, mostly on her right side, all day long. (Tr. 61). Because of the pain, she
does not go out or have a social life. (Id.). She no longer has any hobbies. (Tr. 63). She only
leaves her house to go to doctor appointments. (Id.). However, she stated she does go shopping
“sometimes” but unless the store has a motorized cart available, she cannot be in the store for a
long time. (Tr. 68-69). She takes gabapentin for pain, but also takes OxyContin six or seven
times a month for exceptionally bad pain. (Tr. 62).
Asked if she uses anything to help her walk, she responded that she uses a cane everyday
if she needs to walk and to go up and down stairs to give herself “extra grip.” (Tr. 62-63). She
explained that her knee goes numb and gives out at times, causing her to fall. (Tr. 65). She uses
the cane for both standing and walking, as well as to rise from a sitting position and vice-versa.
(Id.). When using the cane, she can stand for approximately one hour, walk for 10 to 15 minutes,
and sit for 15 to 20 minutes. (Id.). At the time of the hearing, she had been using the cane for six
months. (Tr. 63). She started using it because she was falling weekly. (Id.). Rojas Figueroa also
stated that she wears braces on her right knee and hand. (Tr. 62-63).
Asked about her back pain, Rojas Figueroa stated she experiences lower back pain that
radiates down her right leg three to four times per week. (Tr. 64). On average, the pain is a nine
out of ten. (Id.). She also experiences numbness and tingling. (Id.). To treat her back pain, she
has “had some nerve blockage[.]” (Id.). She also receives physical therapy for her back, knee,
and shoulder. (Id.). At the time of the hearing, she had been going to physical therapy once or
twice a week for approximately one year but stated that she did not feel it was helping. (Tr. 6061).
Rojas Figueroa described her neck pain as stabbing “with a basting needle,” that radiates
down her back and leg. (Tr. 65-66). It also radiates down her right arm into her fingers. (Tr. 66).

18

She also experiences migraines three times per month that last two to three days. (Id.). When she
experiences a migraine, she rubs Vicks on her forehead, stays in a dark room, and takes
medication. (Id.).
She also struggles with mental health. (Tr. 63). She feels as though she is a burden to
people and that she “shouldn’t be here.” (Id.). Her energy level is low, and she does not feel
motivated “to keep going” or to keep dealing with “everything going on in [her] body.” (Tr. 69).
She experiences crying spells twice a day but tries to do it when she is alone. (Tr. 70). She
described her mood as angry, hurt, and depressed. (Id.). To treat her mental health conditions,
Rojas Figueroa sees a therapist and a psychiatrist; she also takes Cymbalta. (Tr. 63-64). These
help “a little.” (Tr. 64).
Rojas Figueroa last worked on September 5, 2021, at Burger King where she had worked
for approximately two years as a general manager. (Tr. 58). In that role, Rojas Figueroa ran the
floor and drive-thru, took orders, made schedules, and held crew meetings. (Id.). The job
required her to lift 20 to 25 pounds. (Tr. 59). She left that job because she could not stand or lift
as required and could not be on her feet for more than an hour before needing to stop. (Id.).
Rojas Figueroa also previously worked for Hearty Heart Home Health taking care of
elderly individuals, helping them shower, preparing meals, and ensuring they took their
medication. (Id.). Asked how much she had to lift in that job, Rojas Figueroa responded: “It
depends on the weight of a person.” (Id.). Additionally, Rojas Figueroa was previously employed
at Buckeye Business Products for approximately seven years, working in the shipping and
receiving department. (Id.). This job required her to lift between 30 to 50 pounds. (Id.).
Asked why she believes she is unable to work, Rojas Figueroa stated that she cannot
stand for more than an hour before her legs go numb, she cannot lift anything with her right

19

shoulder, nor pull anything with her hands, and as a result of a recent carpal tunnel surgery her
“whole right side will go out.” (Tr. 60). Her doctors intend to perform carpal tunnel surgery on
her left hand after she heals from surgery on her right. (Tr. 61).
The VE testified that Rojas Figueroa’s past work included fast food manager, DOT
185.137-010, SVP 5 indicating a skilled occupation, classified as light, performed at medium;
home health aide, DOT 354.377-014, SVP 3, semiskilled, classified as medium, performed at
heavy; and shipping and receiving clerk, DOT 222.387-050, SVP 5, skilled, classified and
performed at medium. (Tr. 72-73).
According to the VE, a hypothetical individual of Rojas Figueroa’s same age, education,
and work experience who could perform work at the light exertion level with never climbing
ladders, ropes, or scaffolds, occasionally climbing ramps and stairs, balancing, stooping,
kneeling, crouching, and crawling, could perform occasional overhead reaching and frequent
front or lateral reaching with the dominant right upper extremity, could perform frequent
pushing, pulling, handling, and fingering with the bilateral upper extremities, should avoid
concentrated exposure to fumes, odors, dust, gases, and poor ventilation, should avoid heights,
can understand, carry out, and remember simple instructions, routine, and repetitive tasks, cannot
perform work requiring specific production rate, assembly line work, can meet production
requirements that allow “flexible go or piece 2,” can maintain focus, persistence concentration,
pace, and attention to engage in such tasks for two-hour increments for eight-hour workdays
within the confines of normal work breaks and lunch periods, can deal with occasional changes
in a routine work setting but changes should be explained in advance, can tolerate occasional and

2

The transcript from the hearing demonstrates that this phrase was used by the ALJ when asking
the VE about the first hypothetical individual. The undersigned is unfamiliar with this phrase and
its meaning; however, I note this portion of the hearing is not at issue.
20

superficial interaction with supervisors, coworkers, and the general public, contact includes what
is necessary for general instruction, task completion, or training, and the interaction is limited to
speaking, signaling, taking instructions, asking questions, and as similar contact, is unable to be,
negotiate, direct, or supervise others, with no arbitration or confrontation, and could not perform
tandem tasks could not perform Rojas Figueroa’s past work. (Tr. 73-74).
However, that hypothetical individual could perform the jobs of mail clerk, DOT
209.687-026, SVP 2, unskilled, light exertion, with 40,000 jobs in the national economy;
housekeeper, DOT 323.687-014, SVP 2, unskilled, light, with 175,000 jobs in the national
economy; and merchandise marker, DOT 209.587-034, SVP 2, unskilled, light, with 90,000 jobs
in the national economy. (Tr. 74). The VE noted that he used his training and experience “to
reference the occasional overhead reach and the frequent front and lateral reaching that it seems
that just aren’t offered in the DOT and SCO,” for this hypothetical person. (Tr. 74-75).
Further, a hypothetical individual with the same limitations as the first, but was limited to
sedentary exertion could perform the jobs of document preparer, DOT 249.587-018, SVP 2,
unskilled, sedentary, with 17,000 jobs in the national economy; table worker, DOT 739.687-182,
SVP 2, unskilled, sedentary, with 200 3 jobs in the national economy; and film touchup screener,
DOT 726.684-110, SCP 2, unskilled, sedentary, with 2,900 jobs in the national economy. (Tr.
75).
If the second hypothetical individual was further limited to needing a cane for
ambulation, they could not perform the jobs of the first hypothetical individual because that
person “would be a one-handed person while standing and walking, which customarily is five

3

The transcript from the hearing indicates that the VE testified there were 200 jobs in the
national economy, however the ALJ’s decision notes that there are 8,200 jobs in the national
economy. (Tr. 42).
21

and a half, six hours a day light work.” (Id.). However, that hypothetical person could perform
the sedentary work described for the second hypothetical individual. (Id.).
If a hypothetical individual needed a cane in order to balance and transition from a seated
to standing position after 15 minutes of sitting and needed the cane to remain standing, the VE
stated that individual could not perform sedentary work. (Tr. 77). Further, if a hypothetical
individual could only sit for four hours and stand or walk for less than two hours, that would be
work preclusive. (Id.). A hypothetical individual that could only reach in front of their body with
the bilateral upper extremities 10% of the workday, they would not be able to perform the light
or sedentary jobs described because “sedentary and light jobs involve frequent reaching 66% of
the time[.]” (Id.). The limitation on reaching to 10% would be work preclusive. (Id.).
If the first, second, or third hypothetical individual was limited to occasional handling,
fingering, and feeling, with the bilateral upper extremities, that would be work preclusive at the
light and sedentary level. (Id.).
Finally, the VE testified that a person can be off task no more than 10% of the time to
maintain employment and can incur no more than one absence per month on an ongoing basis to
sustain competitive employment. (Tr. 76).
IV.

The ALJ’s Decision
1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2026.

2.

The claimant engaged in substantial gainful activity during the following
periods: the alleged onset date through September 5, 2021 (20 CFR
404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3.

However, there has been a continuous 12-month period(s) during which the
claimant did not engage in substantial gainful activity. The remaining
findings address the period(s) the claimant did not engage in substantial
gainful activity.

22

4.

The claimant has the following severe impairments: depression, anxiety,
obesity, cervical spine stenosis, carpal tunnel syndrome, cubital tunnel
syndrome, tenosynovitis of the wrist, right knee osteoarthritis, lumbar
degenerative disc disease, right shoulder partial supraspinatus tear, and
adjustment disorder with mixed anxiety and depressed mood (20 CFR
404.1520(c) and 416.920(c)).

5.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

6.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform sedentary work
as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant can
never climb ladders, ropes, or scaffolds; can occasionally climb ramps and
stairs; can occasionally balance, stoop, kneel, crouch, and crawl; can
occasionally reach overhead and frequently reach in the front and laterally
with the dominant right, upper extremity; can frequently push, pull, handle,
and finger with the bilateral upper extremities; must avoid concentrated
exposure to fumes, odors, dusts, gases, and poor ventilation; must avoid
unprotected heights; can understand, carry out, and remember simple
instructions and routine, repetitive tasks; cannot perform work requiring a
specific production rate, such as assembly-line work; can meet production
requirements that allow a flexible and goal-oriented pace; can maintain the
focus, persistence, concentration, pace, and attention to engage in such tasks
for two-hour increments, for eight-hour workdays, within the confines of
normal work breaks and lunch periods; can deal with occasional changes in
a routine work setting, but changes should be explained in advance; can
tolerate occasional and superficial interactions with supervisors, coworkers,
and the general public and contact still includes what is necessary for
general instruction, task completion, or training, and the interaction is
limited to speaking, signaling, taking instructions, asking questions, and
similar contact; can never mediate, negotiate, or direct or supervise others;
can never perform arbitration or negotiation; can never perform tandem
tasks; and requires a cane for ambulation.

7.

The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).

8.

The claimant was born on November 17, 1979 and was 40 years old, which
is defined as a younger individual age 18-44, on the alleged disability onset
date (20 CFR 404.1563 and 416.963).

9.

The claimant has a limited education (20 CFR 404.1564 and 416.964).
23

10.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).

11.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569a, 416.969, and 416.969a).

12.

The claimant has not been under a disability, as defined in the Social
Security Act, from January 1, 2020, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

(Tr. 25-43).
V.

Law & Analysis
A.

Standard for Disability

Social Security regulations outline a five-step process the ALJ must use to determine
whether a claimant is entitled to benefits:
1.

whether the claimant is engaged in substantial gainful activity;

2.

if not, whether the claimant has a severe impairment or combination of
impairments;

3.

if so, whether that impairment, or combination of impairments, meets or equals
any of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1;

4.

if not, whether the claimant can perform their past relevant work in light of his
RFC; and

5.

if not, whether, based on the claimant’s age, education, and work experience, they
can perform other work found in the national economy.

24

20 C.F.R. § 404.1520(a)(4)(i)-(v) 4; Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642-43 (6th
Cir. 2006). The Commissioner is obligated to produce evidence at Step Five, but the claimant
bears the ultimate burden to produce sufficient evidence to prove they are disabled and, thus,
entitled to benefits. 20 C.F.R. § 404.1512(a).
B.

Standard of Review

This Court reviews the Commissioner’s final decision to determine if it is supported by
substantial evidence and whether proper legal standards were applied. 42 U.S.C. § 405(g);
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). However, the substantial
evidence standard is not a high threshold for sufficiency. Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019). “It means – and means only – ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938). Even if a preponderance of the evidence supports the claimant’s position,
the Commissioner’s decision cannot be overturned “so long as substantial evidence also supports
the conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir.
2003).
Under this standard, the court cannot decide the facts anew, evaluate credibility, or reweigh the evidence. Id. at 476. And “it is not necessary that this court agree with the
Commissioner’s finding,” so long as it meets the substantial evidence standard. Rogers, 486 F.3d
at 241; see also Biestek, 880 F.3d at 783. This is so because the Commissioner enjoys a “zone of

The regulations governing DIB claims are found in 20 C.F.R. § 404, et seq. and the regulations
governing SSI claims are found in 20 C.F.R. § 416, et seq. Generally, these regulations are
duplicates and establish the same analytical framework. For ease of analysis, I will cite only to
the relevant regulations in 20 C.F.R. § 404, et seq. unless there is a relevant difference in the
regulations.

4

25

choice” within which to decide cases without court interference. Mullen v. Bowen, 800 F.2d 535,
545 (6th Cir. 1986).
Even if substantial evidence supported the ALJ’s decision, the court will not uphold that
decision when the Commissioner failed to apply proper legal standards, unless the legal error
was harmless. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“[A] decision
. . . will not be upheld [when] the SSA fails to follow its own regulations and that error
prejudices a claimant on the merits or deprives the claimant of a substantial right.”); Rabbers v.
Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (“Generally, . . . we review
decisions of administrative agencies for harmless error.”). Furthermore, this Court will not
uphold a decision when the Commissioner’s reasoning does “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). Requiring an accurate and logical bridge ensures that a claimant and the reviewing
court will understand the ALJ’s reasoning, because “[i]f relevant evidence is not mentioned, the
court cannot determine if it was discounted or merely overlooked.” Shrader v. Astrue, No. 1113000, 2012 WL 5383120, *6 (E.D. Mich. Nov. 1, 2012); see also Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 749 (6th Cir. 2007).
VI.

Discussion
Rojas Figueroa raises three issues for this Court’s review:
1.

The ALJ erred at Steps Two and Three of the Sequential Evaluation when
she failed to properly apply the criteria of Social Security Ruling 96-8p and
consider all of Plaintiff’s impairments and related limitations when forming
the RFC.

2.

The ALJ erred when she improperly assessed the opinions of the treating
and examining sources and failed to support her conclusions with
substantial evidence.

26

3.

The ALJ erred at Steps Four and Five of the Sequential Evaluation when
she found Plaintiff could perform work at the sedentary level of exertion
and failed to include the need for a cane for balance as well as ambulation.

(ECF Doc. 8, p. 1).
Rojas Figueroa’s arguments will, at times, be addressed out of order for ease of
discussion.
A.

The ALJ properly considered all of Rojas Figueroa’s impairments, including
those found non-severe.

Rojas Figueroa argues that “the ALJ erroneously concluded that [her] migraine
headaches were not a severe impairment.” (ECF Doc. 8, p. 12). In response, the Commissioner
argues that the ALJ “sufficiently explained why she did not consider Plaintiff’s migraine
headaches to be a severe impairment.” (ECF Doc. 10, p. 12). According to the Commissioner,
the ALJ adequately acknowledged that Rojas Figueroa suffered from migraines and sought
treatment for the same in September 2022, but in November 2022 she felt as though her
medication was effective. (Id.). In her reply brief, Rojas Figueroa confuses this issue by arguing
that the ALJ “incorrectly failed to evaluate these headaches when forming her RFC” and further
“failed to include any restrictions related to [her] migraine headaches.” (ECF Doc. 11, p. 1, 2-3).
However, failing to include a limitation in the RFC resultant from a non-severe impairment is not
the same as failing to consider a non-severe impairment when formulating an RFC. The proper
inquiry, as stated, is whether the ALJ properly considered all impairments, both severe and nonsevere when crafting an RFC. I find that the ALJ did just that.
At Step Two, the ALJ considers the medical severity of a claimant’s impairment and
whether there is a severe medically determinable physical or mental impairment – or
combination of impairments – that meets Agency duration requirements. 20 C.F.R.
§ 404.1520(a)(4)(ii). Generally, agency regulations provide that finding no limitations or only
27

mild limitations result in finding a limitation to be non-severe. See 20 C.F.R. § 404.1520a(d)(1).
An impairment or combination of impairments is non-severe when it “does not significantly limit
[one’s] physical or mental ability to do basic work activities.” Id. at § 404.1522(a). So long as
the ALJ considers all of the claimant’s impairments – severe and non-severe – in the remaining
steps of the disability determination, any error at Step Two is harmless. Nejat v. Comm’r of Soc.
Sec., 359 F. App’x 574, 577 (6th Cir. 2009) citing Maziarz v. Sec'y of Health & Human Servs.,
837 F.2d 240, 244 (6th Cir. 1987).
Regarding her migraines, the ALJ found this impairment to be non-severe because
“[t]reatment notes showed that [her] headaches responded to treatment.” Specifically, while she
reported that Imitrex and Maxalt were ineffective, she reported on November 2, 2022 that “her
new migraine medication was effective.” (Tr. 26). Rojas Figueroa expressed to NP Smith that
her new migraine medicine was effective at treating her migraines. (Tr. 1701). As noted by Rojas
Figueroa, approximately a week later, she saw CNP Daimer for her migraines reporting that they
occurred over six times per month and lasted 48 to 72 hours. (Tr. 1566). However, a review of
the treatment notes from this particular encounter do not negate the statements made to NP Smith
indicating that her medication was effectively treating her migraines. Furthermore, while Rojas
Figueroa cites to evidence that she believes supports her contention that her migraines should
have been considered severe, I find this alleged failure harmless because the ALJ went on to
consider all of Rojas Figueroa’s impairments, both severe and non-severe when determining her
RFC. (Tr. 26). Accordingly, I do not recommend remand on this basis.
B.

The ALJ did not err by failing to analyze Listing 11.02B.

Rojas Figueroa also argues that “[p]ursuant to Ruling 19-4p, [her] continued headaches
equaled the criteria of Listing 11.02B” and thus the ALJ erred by failing to analyze the listing.

28

(ECF Doc. 8, p. 14). In response, the Commissioner argues “given that the ALJ found Plaintiff’s
migraine headaches to be non-severe, there was no logical need for her to then evaluate whether
those headaches established per se disability at step three.” (ECF Doc. 10, p. 12). I agree with the
Commissioner.
In evaluating whether a claimant meets or equals a listed impairment, an ALJ must
“actually evaluate the evidence, compare it to [the relevant listed impairment], and give an
explained conclusion, in order to facilitate meaningful judicial review.” Reynolds v. Comm’r of
Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011). But the ALJ “need not discuss listings that the
[claimant] clearly does not meet, especially when the claimant does not raise the listing before
the ALJ.” Sheeks v. Comm’r of Soc. Sec. Admin., 544 F. App’x 639, 641 (6th Cir. 2013). “If,
however, the record raises a substantial question as to whether the claimant could qualify as
disabled under a listing, the ALJ should discuss that listing.” Id. at 641; see also Reynolds, 424 F.
App’x at 415-16 (holding that the ALJ erred by not conducting any Step Three evaluation of the
claimant’s physical impairments, when the ALJ found that the claimant had the severe
impairment of back pain).
“A claimant must do more than point to evidence on which the ALJ could have based his
finding to raise a ‘substantial question’ as to whether he satisfied a listing.” Smith-Johnson v.
Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir. 2014), quoting Sheeks, 544 F. App’x at
641-42. “Rather, the claimant must point to specific evidence that demonstrates he reasonably
could meet or equal every requirement of the listing.” Id., citing Sullivan v. Zebley, 493 U.S. 521,
530 (1990). “Absent such evidence, the ALJ does not commit reversible error by failing to
evaluate a listing at Step Three.” Id. at 433; see also Forrest v. Comm’r of Soc. Sec., 591 F.

29

App’x 359, 366 (6th Cir. 2014) (finding harmless error when a claimant could not show that he
could reasonably meet or equal a listing’s criteria).
SSR 19-4p provides guidance on how “primary headache disorders” such as migraines,
tension-type headaches, trigeminal autonomic cephalagias/cluster headaches are established and
evaluated. See SSR 19-4p, 84 Fed. Reg. 44667, 44667-71 (Aug. 26, 2019). It also offers
direction regarding a Listings analysis.
Primary headache disorder is not a listed impairment in the Listing of
Impairments (listings); however, we may find that a primary headache
disorder, alone or in combination with another impairment(s), medically
equals a listing.
Epilepsy (listing 11.02) is the most closely analogous listed impairment for
an MDI of a primary headache disorder. While uncommon, a person with a
primary headache disorder may exhibit equivalent signs and limitations to
those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures),
and we may find that his or her MDI(s) medically equals the listing.
Paragraph B of listing 11.02 requires dyscognitive seizures occurring at
least once a week for at least 3 consecutive months despite adherence to
prescribed treatment. To evaluate whether a primary headache disorder is
equal in severity and duration to the criteria in 11.02B, we consider: A
detailed description from an AMS of a typical headache event, including all
associated phenomena (for example, premonitory symptoms, aura,
duration, intensity, and accompanying symptoms); the frequency of
headache events; adherence to prescribed treatment; side effects of
treatment (for example, many medications used for treating a primary
headache disorder can produce drowsiness, confusion, or inattention); and
limitations in functioning that may be associated with the primary headache
disorder or effects of its treatment, such as interference with activity during
the day (for example, the need for a darkened and quiet room, having to lie
down without moving, a sleep disturbance that affects daytime activities, or
other related needs and limitations).
SSR 19-4p, 84 Fed. Reg. 44667, 44670-71.
Here, Rojas Figueroa argues that her migraines were per se disabling because they met
listing 11.02B, as applied to her migraines through SSR 19-4p, and that the ALJ failed analyze it.
(ECF Doc. 8, p. 12, 14). However, “[t]he Sixth Circuit has emphasized that the claimant has the
30

burden of showing that [their] impairments . . . meet or are equivalent to a listed impairment.”
McGeever v. Commissioner of Social Security, No. 1:18-cv-0477, 2019 WL 1428208, *7 (N.D.
Ohio Mar. 29, 2019). “Where the claimant does not mention the particular Listing at the hearing
before the ALJ, the Sixth Circuit has found that the ALJ is not obligated to discuss that particular
Listing.” Id.
I previously found no error in the ALJ’s determination that Rojas Figueroa’s migraines
were a non-severe impairment, I therefore find no error in the ALJ not finding them disabling or
for failing to discuss a Listing for that non-severe impairment and accordingly do not
recommend remand on this basis.
C.

The ALJ properly considered Rojas Figueroa’s subjective symptoms
regarding her obesity, pain, and psychological symptoms.

Contained within Rojas Figueroa’s first issue are a few rogue statements regarding her
subjective symptoms; specifically, regarding obesity, pain, and psychological symptoms. While
unartfully argued, it appears she takes issue with the ALJ “opin[ing] that [her] statements were
not entirely consistent with the evidence” and as a result “discounted the combination of [her]
obesity and how it affected the rem[a]inder of her impairments.” (ECF Doc. 8, pp. 14-15). The
Commissioner argues that the ALJ adequately considered Rojas Figueroa’s obesity; the ALJ
specifically “‘considered the claimant’s body habitus’” in conjunction with other impairments in
support of her determination. (ECF Doc.10, p. 15, quoting Tr. 35).
When assessing a claimant’s subjective statements, “‘the ALJ must [first] determine
whether a claimant has a medically determinable physical or mental impairment that can
reasonably be expected to produce the symptoms alleged.’” Grames v. Comm’r of Soc. Sec., 815
Fed. App’x 820, 825 (6th Cir. 2019) quoting Calvin v. Comm’r of Soc. Sec., 437 F. App’x 370,
371 (6th Cir. 2011); SSR 16-3p, 2017 WL 5180304, *3 (Oct. 25, 2017). Next, the ALJ must
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consider the objective medical evidence and the claimant’s reported daily activities, as well as
several other factors, to evaluate the intensity, persistence, and functional limitations of the
claimant's symptoms. See Curler v. Comm’r of Soc. Sec., 561 F. App’x 464, 474 (6th Cir. 2014);
20 C.F.R. § 404.1529(c)(1)-(3); SSR 16-3p, 2017 WL 5180304, *4, *7-8 (Oct. 25, 2017). The
ALJ must determine whether there is objective medical evidence from an acceptable medical
source showing that the claimant has a medical impairment that could reasonably be expected to
produce the alleged pain. If there is, the ALJ considers all the evidence to determine the extent to
which the pain affects the claimant’s ability to work. Heart v. Comm’r of Soc. Sec., No. 22-3282,
2022 WL 19334605, *3 (6th Cir. Dec. 8, 2022), citing 20 C.F.R. § 416.929 (a)-(c). The review in
this case must be deferential. A reviewing court “must affirm the ALJ’s decision as long as it is
supported by substantial evidence and is in accordance with applicable law.” Showalter v.
Kijakazi, No. 22-5718, 2023 WL 2523304, *2 (6th Cir., Mar. 15, 2023). Rojas Figueroa’s
argument does not overcome this deferential standard of review.
In her decision, the ALJ found Rojas Figueroa’s statements regarding intensity,
persistence, and limiting effects of her symptoms not entirely consistent with the medical
evidence. (Tr. 32). Regarding pain, fatigue, and lack of concentration, the ALJ noted that Rojas
Figueroa was consistently marked as “alert” throughout the medical record. (Tr. 32). Further,
while she reported pain in her right shoulder, following her right shoulder arthroscopy and biceps
tenotomy, her medical records indicated slow but steady progress. (Tr. 33). Following an MRI
due to continued reports of pain, she was recommended conservative treatment. (Id.). The ALJ
also noted that Rojas Figueroa complained of knee pain both before and after an arthroscopy and
debridement of the right knee. (Tr. 33-34). However, notes also indicated that she gained relief
from the procedure, and also from medication, and injections. (Id.).

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Regarding obesity, the ALJ noted an inconsistency between Rojas Figueroa’s “problems
with sitting, standing, and walking” and at least five medical records from April 2021 through
February 2023 noting her “normal gait.” (Tr. 32). Notwithstanding this inconsistency, the ALJ
stated “[b]ecause of the claimant’s body habitus and some notes showing antalgic gait, the [ALJ]
found sedentary work more appropriate.” (Tr. 32-33).
Turning to mental health, the ALJ noted that Rojas Figueroa underwent few changes
during her treatment. (Tr. 35). However, despite reports regarding her depressed mood,
constricted affect, and poor appearance, she was also noted to be alert, made good eye contact,
was cooperative and had appropriate demeanor. (Tr. 35-36). Further, she was continued on her
mental health prescriptions. (Id.).
The ALJ considered Rojas Figueroa’s statements regarding her pain, obesity, and mental
health symptoms. In doing so, the ALJ found those statements not entirely consistent with the
record and cited to evidence that both supported and negated Rojas Figueroa’s statements. The
analysis provided by the ALJ created a logical and accurate bridge from the evidence to the RFC,
allowing the plaintiff and reviewing court to understand her reasoning. Accordingly, I decline to
recommend remand on this basis.
D.

The RFC is supported by substantial evidence.

Rojas Figueroa argues that the ALJ’s decision is not supported by substantial evidence
because the RFC failed “to include the need for a cane for both standing and walking” as it “was
needed for balance, weakness, and pain.” (ECF Doc. 8, p. 17, 24). In response, the
Commissioner argues that the ALJ “did not ignore or overlook Plaintiff’s alleged need for a cane
for balancing” rather she discussed the medical evidence and hearing testimony and “simply

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weighed the evidence in a manner in which Plaintiff disagrees.” (ECF Doc. 10, 20-21). I agree
with the Commissioner.
Before proceeding to Step Four of the sequential analysis, the ALJ determines a
claimant’s RFC by considering all relevant medical and other evidence. 20 C.F.R. § 404.1520(e).
The RFC is an assessment of a claimant’s ability to work despite his impairments. Walton v.
Astrue, 773 F. Supp. 2d 742, 747 (N.D. Ohio 2011) citing 20 C.F.R. § 404.1545(a)(1) and SSR
96-8p. “In assessing RFC, the [ALJ] must consider limitations and restrictions imposed by all of
an individual’s impairments, even those that are not ‘severe.’” SSR 96-8p, 61 Fed. Reg. 34474,
34475 (1996). Relevant evidence includes a claimant’s medical history, medical signs, laboratory
findings, and statements about how the symptoms affect the claimant. 20 C.F.R. § 404.1529(a);
see also SSR 96-8p.
SSR 96-9p states:
To find that a hand-held assistive device is medically required, there must
be medical documentation establishing the need for a hand-held assistive
device to aid in walking or standing, and describing the circumstances for
which it is needed (i.e., whether all the time, periodically, or only in certain
situations; distance and terrain; and any other relevant information).
“[T]he Sixth Circuit has held that if a cane is not a necessary device for the claimant’s
use, it cannot be considered a restriction or limitation on the plaintiff’s ability to work.” Murphy
v. Astrue, No. 2:11-cv-00114, 2013 WL 829316, *10 (M.D. Tenn. March 6, 2013), citing
Carreon v. Massanari, 51 Fed. App’x 571, 575 (6th Cir. 2002); Cruz-Ridolfi v. Comm’r of Soc.
Sec., No. 1:17 CV 1075, 2018 WL 1136119, *15 (N.D. Ohio Feb. 12, 2018), report and
recommendation adopted, 2018 WL 1083252. To be considered a restriction or limitation, a cane
“must be so necessary that it would trigger an obligation on the part of the Agency to conclude
that the cane is medically necessary,” i.e., the record must reflect “more than just a subjective

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desire on the part of the plaintiff as to the use of a cane.” Murphy, 2013 WL 829316, at *10
(internal citations omitted). “If the ALJ does not find that such device would be medically
necessary, then the ALJ is not required to pose a hypothetical to the VE.” Id. Generally, an
ALJ’s finding that a cane or other assistive device is not medically necessary is error when the
claimant has been prescribed an assistive device and the ALJ did not include the use of the
device in the RFC assessment and did not provide an explanation for the omission. Cruz-Ridolfi,
2018 WL 1136119, at *10, quoting Watkins v. Comm’r of Soc. Sec., No. 1:16-cv-2643, 2017 WL
6419350, at *11 (N.D. Ohio Nov. 22, 2017), report and recommendation adopted, 2017 WL
6389607.
I note that the ALJ did include the use of the cane in the RFC but did so for ambulation
only. In doing so, the ALJ discussed SSR 96-9p’s requirement that medical documentation both
establishes the need for an assistive device and describes the circumstances for its need. (Tr. 35).
She noted that treatment notes from September 21, 2022, showed that Rojas Figueroa had a
prescription for a cane for “as needed use due to high risk for falls from arthritis and
musculoskeletal decondition.” (Id.). Additionally, the ALJ found that physical therapy notes
indicated use of both a straight cane and a quad cane when her feet swell. (Id.). The ALJ noted
however, that treatment notes indicated that Rojas Figueroa had “normal gait without noted
assistive device use” and “could stand without upper body assistance.” (Tr. 33, 35). Furthermore,
a review of the medical records demonstrates that Rojas Figueroa was prescribed a cane upon
request, not as a result of objective medical examination demonstrating need. (See Tr. 970).
Based on these medical records, the ALJ determined that the record did not support a finding that
Rojas Figueroa needed a cane for balance, and instead needed it for ambulation only. (Tr. 35).

35

In support of her position that the ALJ erred, Rojas Figueroa cites to medical evidence in
the record that she feels demonstrate her need for a cane for ambulation and balance. However,
“a reviewing court can reverse the findings of an ALJ only if they are not supported by
substantial evidence or if the ALJ has applied an erroneous legal standard.” Reynolds v. Comm’r
of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011). It is not for this Court to “reconsider facts,
re-weigh the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute
its judgment for that of the ALJ.” Id. Accordingly, I find no error in the ALJ’s RFC
determination.
E.

The ALJ did not improperly assess the opinions of Rojas Figueroa’s treating
source physicians.

Next, Rojas Figueroa argues that the ALJ improperly assessed the opinions of her treating
and examining physicians. (ECF Doc. 8, pp. 18-23). Specifically, she argues that ALJ failed to
support her determination regarding the persuasiveness of CNP Ebbitt’s opinion when “she
focused only on the fact that Plaintiff was alert” and on a single “note prior to the relevant period
of disability where Plaintiff had a normal range of motion.” (Id. at p. 20). She also argues that
the ALJ erroneously found unpersuasive a Mental Impairment Questionnaire by LISW Stark
which stated that Rojas Figueroa “would be unable to meet competitive standards with
maintaining attention and concentration, managing regular attendance competing a normal
workday and workweek, and performing at a consistent pace.” (Id. at pp. 20-21). According to

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Rojas Figueroa, the Mental Impairment Questionnaire was supported by the psychological
consultative exam. (Id. at p. 21).
In contrast, the Commissioner argues that the ALJ complied with the governing
regulations and referenced both supportability and consistency when discussing the opinions of
CNP Ebbitt and LISW Stark. (ECF Doc. 10, pp. 16-19).
The evaluation of medical opinion evidence is governed by 20 C.F.R. § 404.1520c. This
regulation mandates that the ALJ “will not defer or give any evidentiary weight, including
controlling weight to any medical opinion(s) . . . .” 20 C.F.R. § 404.1520c(a). Rather, the ALJ
must evaluate each medical opinion’s persuasiveness based on its: (1) supportability; (2)
consistency; (3) relationship with the plaintiff; (4) specialization; and, (5) “other factors that tend
to support or contradict a medical opinion or prior administrative medical finding.” 20 C.F.R.
§ 404.1520c(c); see also Heather B. v. Comm’r of Soc. Sec., No. 3:20-cv-442,2022 WL 3445856
(S.D. Ohio Aug. 17, 2022). Supportability and consistency are the most important factors; ALJs
must “explain how [they] considered the supportability and consistency factors for a medical
source’s medical opinions or prior administrative findings in [their] determination or decision.”
20 C.F.R. § 404.1520c(b)(2). ALJs “may, but are not required to,” consider factors three through
five when evaluating medical source opinions. (Id.).
For supportability, “[t]he more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his or her medical opinion(s) . . . the
more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). For consistency,
“[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources

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and non-medical sources in the claim, the more persuasive the medical opinion(s) . . . . 20 C.F.R.
§ 404.1520c(c)(2).
An ALJ must “provide a coherent explanation of his [or her] reasoning. Lester v. Saul,
No. 5:20-cv-01364, 20 WL 8093313 at *14 (N.D. Ohio Dec. 11, 2020), report and
recommendation adopted sub nom., Lester v. Comm’r of Soc. Sec., No. 5:20-cv-01364. 2021 WL
119287 (N.D Ohio, Jan. 13, 2021). The ALJ’s medical source opinion evaluation must contain a
“minimum level of articulation” to “provide sufficient rationale for a reviewing adjudicator or
court.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82
Fed. Reg. 5844, 5858 (Jan. 18, 2017). If an ALJ does not “meet these minimum levels of
articulation,” it “frustrates this [C]ourt’s ability to determine whether her disability determination
was supported by substantial evidence.” Heather B., at *3, citing Warren I. v. Comm’r of Soc.
Sec., No. 5:20-cv-495, 2021 WL 860506, at *8 (N.D.N.Y., Mar. 8, 2021).
Even when an ALJ finds a medical source’s opinion persuasive or consistent and
well-supported, “there is no requirement that an ALJ adopt [a medical source’s] limitations
wholesale.” Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 275 (6th Cir. 2015). So long as
the ALJ’s RFC determination considered the entire record, the ALJ is permitted to make
necessary decisions about which medical findings to credit and which to reject in determining the
claimant’s RFC. See Justice v. Comm’r of Soc. Sec., 515 F. App’x 583, 587 (6th Cir. 2013)
(“The ALJ parsed the medical reports and made necessary decisions about which medical
findings to credit, and which to reject. Contrary to [the claimant’s] contention, the ALJ had the
authority to make these determinations.”).
Here, Rojas Figueroa challenges the ALJ’s assessment of two treating sources. First, she
challenges the ALJ’s finding that CNP Ebbitt’s May 27, 2022 Medical Source Statement was

38

unpersuasive. (ECF Doc. 8, p. 20). She argues that this finding of persuasiveness was erroneous
because the ALJ “failed to support her determination as she focused solely on the fact that [Rojas
Figueroa] was alert and one note prior to the relevant period of disability where Plaintiff had a
normal range of motion” (Id.). As it relates to the ALJ’s focus regarding Rojas Figueroa being
alert, the ALJ stated that the finding that Rojas Figueroa would be off task 25% of the time or
more was inconsistent with the medical record, citing to various records from June 2021 through
February 2023 where her providers noted she was alert. (Tr. 37). Rojas Figueroa does not point
to any medical record evidence that the ALJ failed to consider in making this finding and rather
asks this Court to reconsider the ALJ’s decision, something the Court cannot do. Accordingly, I
find this argument to be without merit.
Regarding the ALJ’s finding about her range of motion, Rojas Figueroa argues that this
conclusion was inconsistent with her finding that Rojas Figueroa had been prescribed a cane for
a high risk of falls. (ECF Doc. 8, p. 20). As previously discussed, I find no error in the ALJ’s
findings related to Rojas Figueroa’s need for a cane. In that analysis, it was noted that the ALJ
acknowledged that Rojas Figueroa was diagnosed a cane on an as-needed basis due to her risk of
falls. As stated previously, I decline the invitation to re-weigh the evidence.
Turning to LISW Stark’s Mental Health Impairment Questionnaire, Rojas Figueroa
argues that the ALJ’s determination that this opinion was unpersuasive was not supported
because she focused on the fact that Rojas Figueroa was alert and could drive. (ECF Doc. 8, p.
21). I disagree with this categorization of the ALJ’s decision. In finding that the Mental Health
Questionnaire was unpersuasive, the ALJ stated that the opinion expressed within it did not
contain citation to evidence in support of it and was not consistent with the medical record. (Tr.
38). In addition to citing LISW Stark’s own treatment records finding that Rojas Figueroa was

39

consistently alert at medical appointments and the fact that Rojas Figueroa was able to drive, the
ALJ further noted that Rojas Figueroa testified that she did chores to the best of her ability, that
she could perform serial threes at her consultative exam, and that the record provided no
indication that she was incapable of attending medical appointments “including consistently
keeping appointments with [LISW] Stark.” (Id.). Rojas Figueroa cites to the psychological
consultative examination performed by Dr. Faust in support for her position, however, it is not
for this Court to “reconsider facts, re-weigh the evidence, resolve conflicts in evidence, decide
questions of credibility, or substitute its judgment for that of the ALJ.” Reynolds v. Comm’r of
Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011).
Because I find that Rojas Figueroa has not demonstrated any reversible error, I do not
recommend remand based the ALJ’s opinions of her treating source physicians.
II.

Recommendation
Because the ALJ applied proper legal standards and reached a decision supported by

substantial evidence, I recommend that the Commissioner’s final decision denying Rojas
Figueroa’s applications for DIB and SSI be affirmed.

Dated: November 22, 2024
Reuben J. Sheperd
United States Magistrate Judge

OBJECTIONS
Objections, Review, and Appeal
Within 14 days after being served with a copy of this report and recommendation, a party
may serve and file specific written objections to the proposed findings and recommendations of
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the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28
U.S.C.§ 636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo
by the assigned district judge.
***
Failure to file objections within the specified time may result in the forfeiture or waiver
of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the
United States Court of Appeals, depending on how or whether the party responds to the report
and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be
specific and not merely indicate a general objection to the entirety of the report and
recommendation; “a general objection has the same effect as would a failure to object.” Howard
v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus
on specific concerns and not merely restate the arguments in briefs submitted to the magistrate
judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge
without specific objections ‘wastes judicial resources rather than saving them, and runs contrary
to the purpose of the Magistrates Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL
3018175, *2 (W.D. Ky. June 15, 2018) (quoting Howard). The failure to assert specific
objections may in rare cases be excused in the interest of justice. See United States v.
Wandahsega, 924 F.3d 868, 878-79 (6th Cir. 2019).

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