Humenik v. Commissioner of Social Security Administration

Filing 11

Memorandum Opinion and Order: Because the ALJ failed to apply proper legal standards, I remand for the ALJ to consider SSR 96-9p regarding Plaintiff's cane usage and affirm the Commissioner's finding regarding Plaintiff's memory deficits. Related Doc. 1 . Magistrate Judge Reuben J. Sheperd on 11/26/2024. (D,JJ)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTHONY HUMENIK,

)

Case No. 1:24-cv-00636

)
Plaintiff,

)

v.

)

MAGISTRATE JUDGE

)

REUBEN J. SHEPERD

)
COMMISSIONER OF

)

SOCIAL SECURITY,

)

MEMORANDUM OPINION AND

)

ORDER

Defendant.

I.

)

Introduction
Plaintiff, Anthony Humenik (“Humenik”), seeks judicial review of the final decision of

the Commissioner of Social Security, denying his 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). I find the Administrative Law Judge (“ALJ”) did not apply proper legal standards and
vacate and remand the Commissioner’s final decision denying Humenik’s DIB and SSI
applications.

1

II.

Procedural History
Humenik filed for DIB and SSI on August 19, 2021, alleging a disability onset date of

October 31, 2013. (Tr. 313). The claims were denied initially and on reconsideration. (Tr. 22836, 242-48). He then requested a hearing before an ALJ. (Tr. 251). Humenik (represented by
counsel) and a vocational expert (“VE”) testified before the ALJ on March 20, 2023. (Tr. 41-43).
Humenik amended his alleged disability onset date to January 31, 2018, during the hearing. (Tr.
44-45, 175).
On April 3, 2023, the ALJ issued a written decision finding Humenik not disabled. (Tr.
15-35). The Appeals Council denied his request for review on February 21, 2024, making the
hearing decision the final decision of the Commissioner. (Tr. 1-3; see 20 C.F.R. §§ 404.955,
404.981). Humenik timely filed this action on April 9, 2024. (ECF Doc. 1).
III.

Evidence
A.

Personal, Educational, and Vocational Evidence

Humenik was 45 years old on the amended alleged onset date, making him a younger
individual according to Agency regulations. (See Tr. 33). Humenik has an eleventh-grade
education and attended special education classes. (See Tr. 346, 412-33). In the past, he worked as
an electromechanical technician. (See Tr. 63).
B.

Relevant Medical Evidence 1

Humenik was primarily treated by David Kuentz, D.O., whose progress notes,
specifically regarding memory issues and cane usage, remained generally unchanged. On
January 31, 2018, Dr. Kuentz’s progress notes stated that Humenik reported progressive memory

1

The relevant period is from January 31, 2018, Humenik’s amended alleged onset of disability.
(See Tr. 44-45, 175). I therefore focus my review of the medical evidence to that available from
that date.
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problems since 2011. (Tr. 614). Humenik described his memory loss as debilitating, despite
taking medication for it. (Id.). However, Dr. Kuentz noted that Humenik found his medication
helpful and quoted Humenik’s statement that his “memory is not as bad.” (Id.). Dr. Kuentz also
noted that prior neurological evaluations, including lab tests, EEG, and a head CT scan, had been
normal and that the head CT scan revealed no source of memory loss. (Tr. 615). Additionally,
Dr. Kuentz observed that Humenik repeats himself often, including during the exam. (Id.). Dr.
Kuentz noted that Humenik stops mid-sentence and forgets what he is speaking about or forgets
what he is looking for. (Id.). Humenik began taking Cymbalta to address symptoms of
depression. (Id.). At a follow-up appointment on May 15, 2018, Humenik indicated that
Cymbalta had significantly improved his symptoms, though memory issues persisted. (Tr. 621).
On November 6, 2018, Dr. Kuentz documented that Humenik had begun using a cane
since their last visit. (Tr. 631). Dr. Kuentz noted that Humenik had lumbar radicular pain and
rheumatoid arthritis, causing pain in Humenik’s hands, knees, and back. (Id.). Memory concerns
remained unchanged besides noting that Humenik used his phone as a reminder for medication
management. (Id.). On November 10, 2018, during a telemedicine visit with Dr. Kuentz,
Humenik reported that his family helps him manage medications due to severe short-term
memory deficits. (Tr. 700). Humenik was unable to identify which medications he was taking at
the time and Dr. Kuentz made a note to follow up with Humenik’s family to ensure the
medication list is up to date. (Id.).
On a visit on October 3, 2019 with Dr. Kuentz, Humenik reported no significant change
in his condition. (Tr. 642-43). He continued managing his rheumatoid arthritis with a
nonsteroidal anti-inflammatory drug, which provided “good results.” (Tr. 643).

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Throughout telemedicine appointments in 2020 and 2021, Dr. Kuentz documented
Humenik’s continued use of a cane and adherence to medication for rheumatoid arthritis,
depression, and memory loss. (See, e.g., Tr. 443-44, 450-52, 456-58). Dr. Kuentz’s notes during
these appointments remained generally unchanged, stating that he had progressive memory
concerns since 2011, had difficulty reading because of his memory, and would forget what he
was speaking about, often repeating himself. (See id.). Dr. Kuentz quoted Humenik in his notes
saying his “memory is not as bad” but that memory loss remained debilitating. (See, e.g., Tr.
451). Despite normal EEG and lab results, Dr. Kuentz considered adding a second medication to
address his memory loss. (Tr. 452).
On January 5, 2022, Humenik underwent a diagnostic evaluation at Ohio Guidestone,
where he reported signs of borderline dementia. (Tr. 845). He described blackouts he had
experienced, including an incident where he drove somewhere and did not remember how he got
there. (Tr. 845-47). He reported difficulty concentrating, frequently “blacking out,” and
forgetting what he was talking about, which he stated he had experienced for over ten years.
(Id.). He was diagnosed with generalized anxiety disorder and major depressive disorder. (Tr.
856).
On February 14, 2022, Humenik was seen for oral surgery. The progress notes read that
he was anxious for the procedure and requested sedation, and that he ambulated with a walker
due to rheumatoid arthritis. (Tr. 917).
On February 1, 2023, neurologist Daniel Benson, M.D., evaluated Humenik. Dr. Benson
observed that Humenik used a cane and had an antalgic gait. (Tr. 1152). A mini-mental status
exam resulted in a score of 16 out of 30, with Humenik unable to spell words backward or recall
basic objects. (Tr. 1151-52). Dr. Benson noted that prior neurological evaluations were

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unremarkable and that Humenik’s presentation suggested potential symptom embellishment. (Tr.
1153). Additional testing was recommended, with a follow-up scheduled in six months. (Id.).
Throughout 2022 and early 2023, Humenik received counseling at Ohio Guidestone. (Tr.
1080). His treatment included community psychiatric support and psycho-social rehabilitation.
(Id.). Diagnoses of recurrent major depressive disorder and generalized anxiety disorder were
maintained during these sessions. (Tr. 1080, 1086).
C.

Medical Opinion Evidence

On December 6, 2021, Dr. Kuentz completed a medical source statement, opining that
Humenik could occasionally lift and carry five pounds, would be limited in standing and
walking, with no further description as to how limited, would not be limited in sitting, could
rarely climb, crouch, kneel, crawl, and could occasionally balance, stoop, reach, push, pull, and
perform fine and gross manipulation. (Tr. 821-22). The opinion also stated that heights, moving
machinery, temperature extremes and pulmonary irritants would affect Humenik’s impairment,
that he was prescribed a cane and breathing machine, and he experiences pain that interferes with
concentration, takes him off track, and causes absenteeism. (Id.). Dr. Kuentz further opined that
Humenik does not need to elevate his legs at will, but he does require additional unscheduled rest
periods during an 8-hour workday, with no further description as to how long. (Tr. 822). The
opinion concluded stating that Humenik was moderately limited in understanding, remembering,
and applying information, and was limited in sustaining an ordinary routine and regular
attendance, in working a full day without requiring extra or longer rest periods, in responding to
demands, managing symptoms, and in making plans independently. (Tr. 823-24).
On December 18, 2021, James Bircher, D.O., conducted a consultative physical
examination. (Tr. 827-32). Dr. Bircher noted normal memory and concentration during the

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evaluation but observed an antalgic gait on the left with the use of a cane. (Tr. 829-30). Humenik
was unable to heel-toe walk, and tandem walking was abnormal. (Id.). Apart from a limited left
hip range of motion, strength and joint function were within normal limits. (Tr. 831, 833-34).
Left hip range of motion was 70 degrees flexion, 15 degrees internal and external rotation. (Tr.
836). Dr. Bircher concluded that Humenik can sit, stand, and walk, with limitations due to pain
and shortness of breath that may lead to difficulty in walking for 60 minutes. (Tr. 831).
On January 8, 2022, state agency reviewing physician Steve McKee, M.D., reviewed the
record and concluded that Humenik could perform light work with postural and environmental
limitations. (Tr. 183-84). Elizabeth Das, M.D., later concurred with this assessment. (Tr. 21618).
On February 8, 2022, Humenik underwent a consultative psychological evaluation with
Thomas Evans, Ph.D. (Tr. 839). Humenik demonstrated significant cognitive impairments,
struggling with basic memory tasks, such as recalling words and naming presidents. (Tr. 841).
His full-scale IQ score of 56 placed him in the extremely low range, with severe memory deficits
noted. (Tr. 842-43). Dr. Evans assessed Humenik with intellectual disability and unspecified
depressive disorder. (Tr. 842). Dr. Evans concluded that Humenik could manage only single-step
tasks and simple instructions and would need assistance managing funds. (Tr. 843-44).
On April 14, 2022, state agency reviewing psychologist Joel Forgus, Ph.D., reviewed the
record. (Tr. 185). While acknowledging a severe depressive disorder, Dr. Forgus found that
Humenik could perform simple, repetitive tasks without strict production standards and adjust to
occasional, gradually introduced changes. (Tr. 185-86). Dr. Forgus also opined that Humenik
could focus for two hours with routine breaks and could maintain concentration with the ability
to adjust to routine changes when introduced gradually over time. (Tr. 185). Dr. Forgus rejected

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Dr. Evans’s IQ findings from February 8, 2022, and concluded that Humenik’s scores were
consistent with malingering at previous testing and were inconsistent with Humenik’s level of
functioning and clinical presentations across settings. (Tr. 195).
On August 12, 2022, Dr. Kuentz provided another medical source statement. (Tr. 105556). He opined that Humenik could lift five pounds, stand or walk for no more than 30 minutes,
and sit for up to four hours in an eight-hour workday due to his rheumatoid arthritis and back
pain. (Tr. 1055). Dr. Kuentz opined that Humenik could rarely climb, balance, stoop, crouch,
kneel, reach, push, pull, and perform fine or gross manipulation. (Tr. 1055-56). Dr. Kuentz
confirmed that Humenik had been prescribed a cane and concluded the medical source statement
by adding that Humenik’s moderate pain and short-term memory deficits would interfere with
work eight hours a day, five days a week. (Tr. 1056). At the same visit, Humenik reported that he
relied on family for assistance with household chores, transportation, and finances. (Tr. 1057).
D.

Administrative Hearing Evidence

On March 20, 2023, Humenik testified before the ALJ. (Tr. 43). The ALJ began by
addressing Humenik's amended alleged onset date of January 31, 2018, which was confirmed
with Humenik and his attorney. (Tr. 44-45).
During testimony, Humenik described how his cognitive issues, including severe shortterm memory deficits, had worsened progressively over time. (Tr. 53-55). He reported
experiencing blackouts at work and believed that somebody was sabotaging his work. (Tr. 5354). Concerned that he would be fired, he voluntarily left the position in 2013. (Id.). He
described frequent blackouts, sometimes waking up with unexplained bruises and scratches,
which caused significant fear and confusion. (Tr. 55). He also noted that these blackouts had
become more frequent, occurring daily. (Tr. 56).

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Regarding his memory problems, Humenik explained that he relied heavily on his phone
to remind him of tasks, medications, and appointments. (Tr. 56-57). He testified that his memory
lapses included forgetting everyday activities, such as retrieving laundry from the dryer, which
had remained untouched for three days because he forgot about it. (Tr. 56). He reported that,
during conversations, he often lost track of what he was saying and appeared disoriented to
others. (Tr. 57). Humenik further described relying on his phone to remember when to take his
medications and testified that his uncle also helped him track appointments and daily tasks. (Id.).
He stated that he lived with his grandmother but received ongoing support from his uncle. (Id.).
Humenik testified that pain affected his mobility and overall functioning. (Tr. 57-58). He
described needing to lay down multiple times throughout the day to relieve his pain. (Tr. 58). He
explained that he cannot walk long distances and halfway through a store trip, he often needed to
stop due to breathlessness and pain. (Tr. 60). He could lift about 20 pounds but would be careful
so as not to incapacitate himself. (Tr. 61).
Humenik further explained that his memory issues have been terrible on his life and have
had a negative impact on his mental health. (Tr. 58-59). He often cannot sleep due to pain. (Tr.
59). His conditions have stopped him from driving as much. (Tr. 61-62). Simple physical tasks
had become unmanageable. (Id.). For example, it can take two to three days for him to sweep the
carpet and he cannot cut the grass anymore. (Tr. 62). He can shower, shave, and cook for himself
but has issues with cleaning and doing the laundry. (Id.).
The VE then testified. The ALJ presented the following hypothetical: an individual who
can lift and carry up to 10 pounds frequently and 20 pounds occasionally, can sit, stand, and walk
for six hours each in an eight-hour workday, and is limited to occasional climbing of ramps and
stairs but never climbing ladders, ropes, or scaffolds. This individual can frequently balance,

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stoop, kneel, crouch, and crawl and should avoid concentrated exposure to extreme cold, heat,
wetness, humidity, respiratory irritants, unprotected heights, and dangerous machinery. Mentally,
the individual can understand, remember, and apply information to complete simple instructions
and perform simple, repetitive tasks without strict production quotas, focusing on work tasks for
two-hour periods with routine breaks. The hypothetical also included occasional changes in
duties and occasional work-related interaction with the general public, coworkers, and
supervisors. (Tr. 62-63).
The VE testified that the hypothetical individual would not be able to perform Humenik’s
past relevant work as an electromechanical technician. (Tr. 64). However, the VE identified
other jobs in the national economy that such an individual could perform. These included
Cleaner, Housekeeper, DOT 323.687-014, with approximately 178,000 jobs available;
Merchandise Marker, DOT 209.587-034, with approximately 137,000 jobs; and Cashier, DOT
211.462-010, with approximately 465,000 jobs. (Id.).
The ALJ asked whether off-task behavior would impact competitive employment. The
VE testified that off-task behavior exceeding 15 percent of the workday would not be tolerated.
(Tr. 65). Additionally, the VE noted that needing at least one or two reminders a day is not
consistent with competitive group work and that most employers would tolerate about one or two
absences per month, but no more than six to eight times per year. (Id.).
IV.

The ALJ’s Decision
In her decision dated March 30, 2023, the ALJ found the following:
1.

The claimant meets the insured status requirements of the Social Security
Act through December 31, 2018.

2.

The claimant has not engaged in substantial gainful activity since January
31, 2018, the amended alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
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3.

The claimant has the following severe impairments: obesity, mild
obstructive ventilatory defect, tobacco use disorder, depression, and anxiety
(20 CFR 404.1520(c) and 416.920(c)).

4.

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).

5.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except: He can occasionally
lift and carry 20 pounds and frequently lift and carry 10 pounds. He can
stand or walk for 6 hours of an 8-hour workday. He can sit for 6 hours of an
8-hour workday. He can never climb ladders, ropes, or scaffolds. He can
occasionally climb stairs and ramps. He can frequently balance, stoop,
kneel, crouch, and crawl. He must avoid jobs that expose the claimant to
more than 66% of the time to extreme cold, heat, wetness, humidity,
respiratory irritants and all jobs that require working in unprotected heights,
operating dangerous moving machinery such as power saws and jack
hammers or commercial driving. He can understand, remember, and apply
information to complete simple instructions. He is able to perform simple
repetitive tasks without strict production standards. He can focus on work
tasks for 2-hour periods with routine breaks and he can maintain
concentration, persistence, or pace throughout a regular workweek. He can
adapt to work tasks that involve up to occasional changes in duties.

6.

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

7.

The claimant was born on November 26, 1972 and was 45 years old, which
is defined as a younger individual age 18-49, on the amended alleged
disability onset date. The claimant subsequently changed age category to
closely approaching advanced age (20 CFR 404.1563 and 416.963).

8.

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

9.

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).

10.

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).
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11.

The claimant has not been under a disability, as defined in the Social
Security Act, from January 31, 2018, the amended alleged onset date,
through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 21-35).
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.

20 C.F.R. § 404.1520(a)(4)(i)-(v) 2; 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).

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.

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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
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

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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 538120, *6 (E.D. Mich. Nov. 1, 2012).
VI.

Discussion
Humenik brings two issues for this Court’s review:
1. Whether the ALJ’s failure to evaluate Mr. Humenik’s need for a cane resulted in a
flawed residual functional capacity assessment and constitutes reversible legal
error.
2. Whether the ALJ’s mental residual functional capacity assessment erroneously
excluded limitations caused by Mr. Humenik’s memory deficits.

(ECF Doc. 8, p. 1).
A.

The ALJ’s failure to provide adequate reasoning under SSR 96-9p regarding
Humenik’s cane usage warrants remand.

Humenik first argues the ALJ erred by not directly addressing his use of a cane and its
impact on his residual functional capacity. (Id. at p. 12). He asserts that his cane is medically
required, citing to multiple instances within the medical record that shows such, and that it
should have been included in the ALJ’s residual functional capacity finding. (Id. at pp. 12-13).
He argues that the ALJ omitted substantial evidence regarding his need for a cane and provided
no indication of applying the factors set forth in SSR 96-9p regarding his need for a cane. (Id.).
The Commissioner responds by asserting two reasons for which Humenik’s argument is
flawed. First, the Commissioner argues that the ALJ clearly considered Humenik’s cane use at
several points and explained why she was not including further limitations in the RFC finding by
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stating: “The medical evidence of record shows can[e] usage with current antalgic gut [sic], but
he has full strength and, other than hip, full range of motion.” (ECF Doc. 10, pp. 6-7, quoting Tr.
33). Second, the Commissioner asserts that Humenik, not the ALJ, has the burden of proof with
respect to the RFC. (Id. at p. 8). The Commissioner argues that Humenik has not met his burden
in proving the need for a cane because, pursuant to SSR 96-9p, although Humenik did have a
prescription for the cane, he did not have one describing the circumstances for which the cane is
needed. (Id.).
SSR 96-9p states, in relevant part:
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). The adjudicator must always consider the
particular facts of a case. For example, if a medically required hand-held assistive
device is needed only for prolonged ambulation, walking on uneven terrain, or
ascending or descending slopes, the unskilled sedentary occupational base will not
ordinarily be significantly eroded.
SSR 96-9p, 1996 WL 374185 (S.S.A. July 2, 1996).
When determining an RFC, “the ALJ must give some indication of the evidence upon
which [she] is relying, and [she] may not ignore evidence that does not support [her] decision,
especially when that evidence, if accepted, would change [her] analysis.” Fleischer, 774
F.Supp.2d at 880 citing Bryan v. Comm’r of Soc. Sec., 383 F. App’x. 140, 148 (3d Cir. 2010)
(“The ALJ has an obligation to ‘consider all evidence before [her] when [she] ‘mak[es] a
residual functional capacity determination,’ and must also ‘mention or refute . . . contradictory,
objective medical evidence’ presented to [her].”)). See also SSR 96-8p, at *7, 1996 SSR LEXIS
5, *20 (“The RFC assessment must always consider and address medical source opinions. If the
RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain
why the opinion was not adopted.”). Although the ALJ determines the RFC, the claimant bears
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the burden of proving the impairments that support it. See Her v. Comm’r of Soc. Sec., 203 F.3d
388, 391 (6th Cir. 1999).
Here, the ALJ acknowledged Humenik’s cane usage in multiple references throughout
her decision. (See Tr. 26 (“He uses a cane.”); id. at 29 (“He had an antalgic gait with cane.”); id.
(“He has been prescribed a cane and breathing machine.”); id. at 30 (“He had an antalgic gait on
the left and he used a cane.”); id. (“He uses a cane to ambulate.”); id. at 31 (“He walked with the
assistance of a cane.”)). However, these references merely indicate the presence of cane usage in
the record and do not explain why the ALJ excluded the cane from the RFC analysis under SSR
96-9p.
The ALJ also discussed the two medical source opinions by Dr. Kuentz that referenced
Humenik’s cane prescription, but inadequately explained why she was not including Humenik’s
cane use in the RFC. In addressing Dr. Kuentz’s December 6, 2021 medical source opinion, the
ALJ omitted any discussion of the cane prescription. (Compare Tr. 30 with Tr. 821-22).
Regarding Dr. Kuentz’s August 12, 2022 opinion, the ALJ stated:
He has been prescribed a cane. He does not need to alternate positions. He has
moderate pain that interferes with concentration, takes him off-task, and causes
absenteeism. He does not need to elevate his legs. He requires additional
unscheduled breaks. The undersigned finds this opinion unpersuasive because it
[is] based on the claimant’s subjective complaints rather than on objective findings.
The current consultative examination shows full strength and full range of motion
in all extremities (Exhibit B5F). While the claimant’s conditions may limit him, the
evidence does not support the degree of limitations as opined.
(Tr. 31-32).
Although the ALJ acknowledged the cane prescription, she did not explain why
Humenik’s cane usage specifically was excluded from the RFC nor did she address the SSR 969p factors. Multiple medical source opinions reveal Humenik’s reliance on a cane. (See, e.g., Tr.
443-44, 450-52, 456-58). Courts throughout this Circuit have upheld ALJ decisions that did not
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include the need for a cane in a claimant’s RFC did so after finding the ALJ provided an
adequate SSR 96-9p analysis in explaining why cane usage was being excluded. See, e.g.,
Golden v. Berryhill, No. 1:18CV00636, 2018 WL 7079506, at *19 (N.D. Ohio Dec. 12, 2018)
(finding the ALJ did not err in not including a limitation for a cane because the ALJ’s decision
discussed why the claimant did not fulfil the requirements under SSR 96-9p); Krieger v. Comm’r
of Soc. Sec., No. 2:18-cv-876, 2019 WL 1146356, *12 (S.D. Ohio Mar. 13, 2019) (finding the
ALJ did not err in not including a limitation for a cane because the decision adequately described
that there were “intermittent references to the claimant using a cane” but “nothing to explain the
circumstances in which he used it.”); Salem v. Colvin, No. 14-CV-11616, 2015 WL 12732456,
*4 (E.D. Mich. Aug. 3, 2015) (finding the ALJ did not err by excluding a limitation for a cane,
despite the claimant having a prescription, because the ALJ considered SSR 96-9p and noted that
neither the prescription nor treatment records “indicate[d] the circumstances in which [the
claimant] might require the use of a cane.”).
Here, the ALJ made no reference to SSR 96-9p or include its analysis when excluding
Humenik’s cane usage from the RFC. Accordingly, I remand this issue to the ALJ for
reconsideration of the medical evidence regarding Humenik’s cane usage under SSR 96-9p.
B.

The ALJ did not erroneously exclude limitations caused by Humenik’s
memory deficits from the RFC.

Humenik argues that the ALJ’s RFC assessment lacks substantial evidence because it
failed to account for limitations caused by Humenik’s alleged severe memory deficits. (ECF
Doc. 8, p. 14). Specifically, he claims that the ALJ disregarded physician comments about his
memory issues and omitted to include such limitations in the RFC. (Id. at 14). For example, the
ALJ did not find the opinion of Dr. Evans, an evaluating psychologist for Social Security, to be

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fully persuasive and did not consider the doctors’ findings about Humenik’s memory deficit. (Id.
at 14-15).
The Commissioner, by contrast, responds with two arguments. First, the Commissioner
asserts that the ALJ appropriately limited the RFC to symptoms and impairments deemed
medically determinable and severe. (ECF Doc. 10, pp. 9-10). The ALJ concluded at Step Two
that Humenik did not have a medically determinable memory impairment. (Id.) Second, the
Commissioner maintains that even if Humenik’s memory deficits were considered a medically
determinable impairment, the ALJ reasonably evaluated their functional impact. (Id. at pp. 1011).
“At Step Two of the sequential analysis, claimant has the burden of proving he has a
severe medically determinable impairment, in order to establish disability within the meaning of
the Act.” Dowey v. Comm’r of Soc. Sec., No. 5:17CV2489, 2018 WL 7681369, at *3 (N.D. Ohio
Dec. 21, 2018) (citations omitted), report and recommendation adopted sub nom. Dowey v.
Berryhill, No. 5:17CV2489, 2019 WL 580570 (N.D. Ohio Feb. 12, 2019); Higgs v. Secretary,
880 F.2d 860, 862-63 (6th Cir. 1988). The impairments “must result from anatomical,
physiological, or psychological abnormalities that can be shown by medically acceptable clinical
and laboratory diagnostic techniques.” 20 C.F.R. § 404.1521. And thus, the “impairment[s] must
be established by objective medical evidence from an acceptable medical source.” Id. ALJs “will
not use [a claimant’s] statement of symptoms, a diagnosis, or a medical opinion to establish the
existence of . . . impairment(s).” 20 C.F.R. § 404.1521. The ALJ may terminate her disability
evaluation at Step Two if the claimant does not meet his burden of proving an impairment or if
the ALJ finds the claimant’s impairment is not severe. Dowey, 2018 WL 7681369, at *3.

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In the present case, the ALJ found that the medical evidence did not establish “extreme”
limitations in any of the four areas of mental functioning required for Step Two analysis: (1)
understanding, remembering, or applying information; (2) interacting with others; (3)
concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. (Tr. 23).
Instead, the ALJ determined that Humenik exhibited mild limitations in interacting with others
and moderate limitations in the remaining areas. (Tr. 23-24). In explaining her decision, the ALJ
wrote, in part:
[Humenik] also stated that he could prepare meals, pay bills, shop, and drive. In
addition, the record shows that the claimant was able to provide information about
his health, describe his prior work history, respond to questions from medical
providers, and there is [sic] any mention of any issues with the claimant’s short- or
long-term memory… Additionally, the record fails to show any mention of
distractibility and an inability to complete testing that assesses concentration and
attention… [Humenik] also stated that he is able to handle self-care and personal
hygiene and help care for his grandmother.
(Id.).
Based on these findings, the ALJ concluded,
Because the claimant’s mental impairments do not cause at least one “extreme”
limitation or two “marked” limitations, the “paragraph B” criteria are not satisfied.
The undersigned has also considered whether the “paragraph C” criteria are
satisfied. In this case, the evidence fails to establish the presence of the “paragraph
C” criteria. The record does not establish that the claimant has only marginal
adjustment, that is, a minimal capacity to adapt to changes in the claimant’s
environment or to demands that are not already part of the claimant’s daily life.
There is no objective evidence or even subjective reports of exacerbations or
temporary increases in symptoms or signs accompanied by a loss of adaptive
functioning. There is no evidence of an exacerbation in symptoms or signs that
would ordinarily require increased treatment or a less stressful situation. There is
no record of a significant alteration in medication or documentation of the need for
a more structured psychological support system.
Finally, the undersigned notes that no State agency psychological consultant
concluded that a mental listing is medically equaled.
(Tr. 24).
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I find that the ALJ’s discussion is well-supported by substantial evidence and that she did
not err by excluding Humenik’s memory deficits in the RFC. The ALJ sufficiently explained
why she did not find Humenik’s memory impairment to constitute an “extreme” limitation at
Step Two and further addressed why she found relevant medical evidence unpersuasive in her
RFC analysis.
Dr. Kuentz’s December 6, 2021, medical source statement indicated that Humenik
exhibited moderate to marked limitations in understanding, remembering, and applying
information, as well as in maintaining concentration. (Tr. 821-22). However, the ALJ found this
opinion unpersuasive because it lacked a diagnosis or objective tests to substantiate such extreme
limitations and it relied heavily on subjective reports rather than objective findings. (Tr. 30).
Similarly, Dr. Evans’s February 8, 2022, consultative psychological examination diagnosed
Humenik with unspecified intellectual disability and suggested that he should be limited to
simple, routine tasks. (Tr. 839-44). The ALJ found this opinion only partially persuasive,
explaining that Dr. Evans’s use of vague and imprecise terminology undermined the opinion’s
reliability. (Tr. 31). Additionally, the ALJ concurred with State agency consultant Joel Fargus,
who concluded that Humenik was malingering. (Tr. 31). Accordingly, the ALJ determined that
the medical evidence of record did not meet paragraph B or C criteria for establishing a severe
mental impairment. (Tr. 24).
Humenik has not met his burden to establish error in the ALJ’s decision. While he points
to subjective statements in the record regarding his memory, such evidence was considered and
reasonably weighed by the ALJ. The ALJ provided a detailed explanation of why such evidence
and the associated medical opinions were unpersuasive. I find no error and decline to remand on
this basis.

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VII.

Conclusion
Because the ALJ failed to apply proper legal standards, I remand for the ALJ to consider

SSR 96-9p regarding Humenik’s cane usage and affirm the Commissioner’s finding regarding
Humenik’s memory deficits.
Dated: November 26, 2024
Reuben J. Sheperd
United States Magistrate Judge

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