Kochenour v. Commissioner of Social Security

Filing 17

Memorandum Opinion and Order that the decision of the Commissioner is not supported by substantial evidence, and the Court VACATES the decision of the Commissioner and REMANDS the case to the Social Security Administration. Signed by Magistrate Judge Kenneth S. McHargh on 12/18/15. (M,De)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSHUA KOCHENOUR,
Plaintiff,
v.

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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CASE NO. 3:14-CV-2451

MAGISTRATE JUDGE
KENNETH S. McHARGH

MEMORANDUM OPINION &
ORDER

This case is before the Magistrate Judge pursuant to the consent of the parties. (Doc. No.
16). The issue before the undersigned is whether the final decision of the Commissioner of
Social Security (“Commissioner”) denying Plaintiff Joshua Kochenour’s (“Plaintiff” or
“Kochenour”) applications for Supplemental Security Income benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq., and for a Period of Disability and Disability
Insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423, is
supported by substantial evidence and, therefore, conclusive.
For the reasons set forth below, the Court AFFIRMS the Commissioner’s decision.
I. PROCEDURAL HISTORY
On June 28, 2012, Plaintiff protectively filed applications for Supplemental Security
Income benefits and Disability Insurance benefits. (Tr. 179, 185). Plaintiff alleged disability as
of January 1, 2011, due to back and feet problems, along with hand and shoulder injuries. (Tr.

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47, 179, 185). The Social Security Administration denied his claims initially and upon
reconsideration. (Tr. 55, 65, 84, 100).
Upon Plaintiff’s request, a video hearing was held before Administrative Law Judge
(“ALJ”) Sandra DiMaggio Wallis on June 21, 2013. (Tr. 8, 26-46).

Plaintiff, represented by

counsel, appeared and testified before the ALJ. (Id.). A vocational expert (“VE”), George
Coleman, also appeared and testified. (Id.).
On July 30, 2013, the ALJ issued a decision, finding Plaintiff did not qualify for benefits.
(Tr. 8-18). After applying the five-step sequential analysis,1 the ALJ concluded that Plaintiff did
not retain the ability to perform his past work, but that he was able to perform other work
existing in significant numbers in the national economy. (Id.).

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The Social Security Administration regulations require an ALJ to follow a five-step sequential analysis
in making a determination as to “disability.” See 20 C.F.R. §§ 404.1520(a), 416.920(a). The Sixth Circuit
has summarized the five steps as follows:
(1)

If a claimant is doing substantial gainful activity–i.e., working for profit–she is not
disabled.

(2)

If a claimant is not doing substantial gainful activity, her impairment must be severe
before she can be found to be disabled.

(3)

If a claimant is not doing substantial gainful activity and is suffering from a severe
impairment that has lasted or is expected to last for a continuous period of at least twelve
months, and her impairment meets or equals a listed impairment, claimant is presumed
disabled without further inquiry.

(4)

If a claimant’s impairment does not prevent her from doing her past relevant work, she is
not disabled.

(5)

Even if a claimant’s impairment does prevent her from doing her past relevant work, if
other work exists in the national economy that accommodates her residual functional
capacity and vocational factors (age, education, skills, etc.), she is not disabled.

Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534
(6th Cir. 2001).
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The Appeals Council denied Plaintiff’s request for review, making the ALJ’s July 30,
2013, determination the final decision of the Commissioner. (Tr. 1-3). Plaintiff now seeks
judicial review of the ALJ’s final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c).
II. EVIDENCE
A. Personal Background Information
Plaintiff was born on May 5, 1979, was 31-years-old as of the alleged onset date and 34years-old at the time the ALJ rendered her decision. (Tr. 47). As a result, Webb was considered
a “younger person” for Social Security purposes. 20 C.F.R. §§ 404.1563(c), 416.963(c). The
ALJ found that Plaintiff had past relevant work as a painting helper and a factory warehouse
worker. (Tr. 16).
B. Medical Evidence2
The majority of the medical evidence on the record relates to Plaintiff’s physical
impairments, namely impairments of his knees, feet, shoulders, back, and right hand. However,
Plaintiff does not challenge the ALJ’s findings with respect to his physical impairments, but
maintains error only as to the ALJ’s analysis of Plaintiff’s alleged mental impairments.
Accordingly, this summary focuses on medical evidence relating to Plaintiff’s mental condition
during the relevant period.
Plaintiff reported a change in his condition upon reconsideration of his claim, alleging he
now suffered from severe depression in addition to his physical ailments. (Tr. 70, 86). At the
request of the state, Brian Griffiths, PhD., conducted a psychological disability evaluation on
December 21, 2012, to determine the presence or absence of a mental disorder, and any resulting
limitations and mental activities required to work. (Tr. 512). Dr. Griffiths reported that, in
The following recital of Plaintiff’s medical record is an overview of the medical evidence pertinent to
Plaintiff’s appeal. It is not intended to reflect all of the medical evidence of record.
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addition to his physical injuries and impairments, Plaintiff “alluded to depression” as a further
limitation to his ability to work. (Tr. 513). The report indicated Plaintiff stated no history of
psychiatric hospitalization or community health system involvement, and that mental illness does
not run in his family. (Tr. 514). When questioned about his emotional condition, Plaintiff
reported depression with stressors from loss of physical functioning, financial hardship, and
chronic pain. (Id.). Additionally, Dr. Griffiths reported Plaintiff further alluded to anxiety,
stating he had previously suffered from two panic attacks and “worries especially about money.”
(Id.). The report indicated Plaintiff stated he cries, he withdraws from others, no longer finds
pleasure in activities he formerly enjoyed, sleeps poorly, has low energy, and is often irritable
and short-tempered. (Id.). Further, he denied suicidal thinking, and reported adequate appetite.
(Id.).
Dr. Griffiths did not conduct any psychological testing but observed that, while Plaintiff
did not display unusual behaviors, delusional thinking, or autonomic or motoric indications of
anxiety, he did have a dysphoric mood and displayed a downcast facial expression. (Tr. 515).
Dr. Griffiths determined there were no major inconsistencies in the information provided by
Plaintiff during the examination, that self-reported data appeared reliable, and diagnosed Plaintiff
with Depressive Disorder NOS. (Tr. 516). He found moderate symptomatology and assigned
Plaintiff a GAF score of 55. (Id.).
Regarding the impact of his mental condition on work-related abilities, Dr. Griffiths
determined Plaintiff would have no difficulties understanding, remembering, and following
simple instructions. (Tr. 517). However, his findings indicated Plaintiff’s emotional difficulties
could interfere with his ability to pay attention and concentrate, and that his low energy and poor
frustration tolerance may interfere with task persistence and pace. (Id.). Dr. Griffiths further

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opined his depression may negatively impact Plaintiff’s ability to effectively interact with
coworkers, supervisors and the general public (to some extent), and that Plaintiff’s mental
condition could be exacerbated by day-to-day work stress and pressures, leading to crying,
withdrawal, and slowed work performance. (Id.).
On January 3, 2013, Jennifer Swain, Psy.D., a state agency psychological consultant,
reviewed the evidence and conducted an assessment of Plaintiff’s mental condition and
limitations. (Tr. 77-78, 93-94). Dr. Swain determined Plaintiff suffered from affective disorders
that were severe in nature. (Tr. 77, 93). In coordination with a finding that Plaintiff did not meet
the “B” criteria of the Listing, Dr. Swain found no restrictions in activities of daily living, mild
difficulties in maintaining social functioning, moderate difficulties in maintaining concentration,
persistence or pace, and no repeated episodes of decompensation. (Tr. 77, 81-82, 93, 97-98).
Further, the report stated that evidence did not establish the presence of “C” criteria of the
Listings. (Tr. 77, 93). Although Dr. Swain concluded work stress might exacerbate depressive
episodes, Plaintiff did not decompensate from exposure to the workplace, he retained the ability
to work in a relatively static setting, and was only moderately limited in his ability to respond
appropriately to changes in the work setting. (Tr. 82, 98).
III. SUMMARY OF THE ALJ’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2015.
2. The claimant has not engaged in substantial gainful activity since January 1, 2011, the
alleged onset date.
3. The claimant has the following severe impairments: knee disorder, feet disorder, and
shoulder disorder.

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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 C.F.R. Part 404,
Subpart P, Appendix 1.
5. After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to lift/carry and push/pull up to twenty pounds
occasionally and up to ten pounds frequently, stand/walk six hours per eight-hour
workday, and sit six hours per eight-hour workday. He can occasionally climb ramps and
stairs, but never climb ladders, ropes, or scaffolds. He can occasionally balance, stoop,
kneel, crouch, and crawl. He must change positions every hour and will be off task for
one minute each time. He can occasionally reach overhead with the dominant right upper
extremity and can frequently push, pull, and operate foot controls with the right lower
extremity. He must avoid unprotected heights or moving machinery.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born on May 5, 1979 and was 31 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date.
8. The claimant has a limited education and is able to communicate in English.
9. Transferability of job skills is not an issue in this case because the claimant’s past
relevant work is unskilled.
10. Considering the claimant’s age, education, work experience, and residual functioning
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform.
11. The claimant has not been under a disability, as defined by the Social Security Act, from
January 1, 2011, through the date of this decision.
(Tr. 10-17) (internal citations omitted).
IV. DISABILITY STANDARD
A claimant is entitled to receive Disability Insurance and/or Supplemental Security
Income benefits only when she establishes disability within the meaning of the Social Security
Act. See 42 U.S.C. §§ 423, 1381. A claimant is considered disabled when she cannot perform
“substantial gainful employment by reason of any medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve (12) months.” See 20 C.F.R. §§ 404.1505, 416.905.
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V. STANDARD OF REVIEW
Judicial review of the Commissioner’s benefits decision is limited to a determination of
whether, based on the record as a whole, the Commissioner’s decision is supported by substantial
evidence, and whether, in making that decision, the Commissioner employed the proper legal
standards. See Cunningham v. Apfel, 12 F. App’x 361, 362 (6th Cir. 2001); Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984); Richardson v. Perales, 402 U.S. 389, 401 (1971).
“Substantial evidence” has been defined as more than a scintilla of evidence but less than a
preponderance of the evidence. See Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535
(6th Cir. 1981). Thus, if the record evidence is of such a nature that a reasonable mind might
accept it as adequate support for the Commissioner’s final benefits determination, then that
determination must be affirmed. Id.
The Commissioner’s determination must stand if it is supported by substantial evidence,
regardless of whether this Court would resolve the issues of fact in dispute differently or
substantial evidence also supports the opposite conclusion. See Mullen v. Bowen, 800 F.2d 535,
545 (6th Cir. 1986); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). This Court may
not try the case de novo, resolve conflicts in the evidence, or decide questions of credibility. See
Garner, 745 F.2d. at 387. However, it may examine all the evidence in the record in making its
decision, regardless of whether such evidence was cited in the Commissioner’s final decision.
See Walker v. Sec’y of Health & Human Servs., 884 F.2d 241, 245 (6th Cir. 1989).
VI. ANALYSIS
Step Two Analysis
Plaintiff argues that the ALJ erred by failing to determine that his depression was
“severe” at step two of the sequential analysis. At this step, the claimant must show that he has
an impairment which significantly interferes with his ability to do basic work activities. See 20
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C.F.R. §§ 404.1520(c), 416.920(c). The ALJ’s ruling here is viewed under a de minimus
standard. Winn v. Comm’r of Soc. Sec., 615 Fed. Appx. 315, 324-25 (6th Cir. 2015). Thus, a
claimant’s impairment will only be construed as non-severe when it is a “slight abnormality
which has such a minimal effect on the individual that it would not be expected to interfere with
the individual’s ability to work irrespective of age, education and work experience.” Farris v.
Sec’y of Health & Human Servs., 773 F.2d 85, 90 (6th Cir. 1985) (citing Brady v. Heckler, 724
F.2d 914, 920 (11th Cir. 1984)).
Nevertheless, an ALJ’s failure to properly name one of a claimant’s impairments as
severe will not always constitute reversible error. Remand is not necessary so long as the ALJ
finds the claimant to suffer from at least one severe impairment and continues to evaluate both
the claimant’s severe and non-severe impairments at the latter stages of the sequential analysis.
Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); Nejat v. Comm’r
of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009) (“[W]hen an ALJ considers all of a
claimant’s impairments in the remaining steps of the disability determination, an ALJ’s failure to
find additional severe impairments at step two does not constitute reversible error.’”).
At step two, the ALJ acknowledged Plaintiff had a determinable impairment of
depression, but found that it was non-severe. The ALJ considered the only medical evidence
relating to this condition—the opinions of the consultative examiner, Dr. Griffiths, and the state
agency psychological consultant, Dr. Swain—as well as the other evidence of record and hearing
testimony. (Tr. 11-12). Giving little weight to the reports of Drs. Griffiths and Swain, the ALJ
found their determinations as to the severity of Plaintiff’s depression were not supported by the
evidence of record, which “fails to demonstrate that this condition has more than a minimal
impact on the claimant’s ability to perform work related functions.” (Tr. 12). Considering the
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“B” criteria, the ALJ found no restrictions of daily living activities or episodes of
decompensation, and found only mild difficulties in maintaining social functioning and
maintaining concentration, persistence, or pace.

(Tr. 11).

In further support of her

determination, the ALJ reasoned that Plaintiff’s allegation of severe depression was subsequent
to his initial claim for benefits, medical notes did not include complaints or evidence that he
suffered from depression over the course of his treatment,3 and that Plaintiff did not raise
significant concerns of depression at the hearing. (Tr. 11-12). The opinion does not specifically
refer to Plaintiff’s depression after the step two analysis.
Plaintiff’s argument that the ALJ erroneously determined that his depression was not
severe is not well-taken. Where an ALJ applies the appropriate step two standard, considers the
relevant evidence, and draws conclusions supported by the analysis of that evidence, his
conclusions at step two will not be disturbed. See Van der Maas v. Comm’r of Soc. Sec., 198
Fed. Appx. 521, 527 (6th Cir. 2006) (upholding ALJ’s step two finding of non-severe
impairment where ALJ properly determined, based on her analysis of record evidence, that
claimant’s impairment did not “‘significantly limit[] basic work activities.’”). Here, the ALJ
considered the evidence on the record, including the only opinions directly speaking to his
alleged depression, those of Dr. Griffiths and Dr. Swain. Her decision articulated consideration
of the “B” and “C” criteria, and found mild to no difficulties or restrictions in the functional
areas she is required to assess under 20 C.F.R. §§ 404.1520a and 416.920a. (Tr. 11-12). Further,

Review of Plaintiff’s medical treatment records, dated from 2009 into 2013, do not reveal any
complaints or concerns about depression or other mental health issues, and consistently report normal and
unremarkable mental and psychosocial status. (Tr. 308, 428, 433, 435, 439-40, 449, 461, 474-75, 487,
507-08). The sole mention of depression outside of the state agency consultants’ reports is Plaintiff’s
denial of depression in a patient summary relating to Plaintiff’s physical impairments. (Tr. 308).
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the ALJ provided good reasons that were supported by the record for discounting the opinions of
Dr. Griffiths and Dr. Swain, as well as the alleged overall severity of Plaintiff’s depression.
There is no merit to Plaintiff’s claim that the ALJ ignored expert medical opinions and
improperly substituted her own by finding his depression was not severe. The ALJ is responsible
for weighing the medical and non-medical evidence and does not improperly “play doctor”
merely because her evaluation of all the evidence leads her to a different conclusion than a given
medical opinion. See Coldiron v. Comm’r of Soc. Sec., 391 Fed. Appx. 435, 439 (6th Cir. 2010)
(“An ALJ does not improperly assume the role of a medical expert by weighing the medical and
non-medical evidence before rendering an RFC finding.”) (citing Poe v. Comm’r of Soc. Sec.,
342 Fed. Appx. 149, 157 (6th Cir. 2009)). The ALJ did not ignore, but rather clearly considered,
the opinions of Drs. Griffiths and Swain, but determined that their conclusions were not
substantiated by any objective or credible evidence on the record. The ALJ expressed good
reasons to reject these non-treating source opinions, which were not based on a course of
treatment, but rather based entirely on a one-time assessment. See generally Coldiron, 391 Fed.
Appx. at 442 (refusing to extend the treating source requirements to consultative examiner that
examined claimant only once, explaining treating physicians “have a deeper insight into the
medical condition of the claimant than [] a person who has examined a claimant but once, or who
has only seen the claimant’s medical records.”). The ALJ articulated that, in contradiction to the
conclusions of Drs. Griffiths and Swain, the record notably did not include any reference or
concerns of depression or mental health issues throughout the relevant treatment period. Cf.
Winn, 615 Fed. Appx at 323-25 (finding ALJ impermissibly substituted her own judgment for
that of physician when she found claimant’s mental impairment was not severe, where treatment
records strongly suggested a continuous severe mental impairment, including the opinion from

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claimant’s treating psychiatrist that claimant’s mental impairments amounted to “marked”
limitations). Further, although aware that the record contained limited evidence as to his alleged
depression, Plaintiff, along with counsel, failed to utilize the opportunity afforded by the hearing
to testify as to the severity of this condition.
RFC Analysis
Upon finding that Plaintiff’s medically determinable impairment of depression was not
severe at step two, the ALJ was required to consider it along with his severe impairments in
conducting the RFC analysis. When formulating an RFC, an ALJ must “‘consider the combined
effect of all of [the claimant’s] impairments without regard to whether any such impairment, if
considered separately, would be of sufficient severity.’” Gentry v. Comm’r of Soc. Sec., 741 F.3d
708, 726 (quoting 20 C.F.R. § 404.1523), LaRiccia v. Comm’r of Soc. Sec., 549 Fed. Appx. 377,
388 (6th Cir. 2013) (“[T]he ALJ’s assessment of residual functional capacity reflects a
claimant’s functional capacity in light of all his limitations, not just those that are ‘severe.’”).
This standard recognizes that “the definition of a non-severe impairment contemplates that nonsevere impairments may very well impose some type of limitation on basic work activities” and
that “an ALJ’s conclusion that an impairment is non-severe is not tantamount to a conclusion
that the same impairment…does not impose any work-related restrictions.” Patterson v. Colvin,
No. 5:14-cv-1470, 2015 WL 5560121, *4 (N.D. Ohio Sept. 21, 2015) (quoting Katona v.
Comm’r of Soc. Sec., No. 14-cv-10417, 2015 WL 871617, *6 (E.D. Mich. Feb. 27, 2015) (citing
20 C.F.R. 404.1521(a)).
An ALJ’s disability determination is not supported by substantial evidence where all
impairments, both severe and non-severe, are not considered in the RFC analysis. “Courts within
the Sixth Circuit have repeatedly held that ‘an ALJ’s failure to adequately explain how an
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impairment affects an individual’s RFC may constitute reversible error.’” Patterson, 2015 WL
5560121 at *4 (quoting Katona, 2015 WL 871617 at *7). Even if an ALJ finds it unnecessary to
impose any further restrictions due to a claimant’s non-severe impairments, the ALJ is required
to articulate at this step in the analysis why these impairments do not require a more limited
RFC. Id. (“Where an ALJ determines that non-severe impairments do not result in any workrelated restrictions or limitations, the ALJ ‘is required to state the basis for such conclusions.’”)
(quoting Hicks v. Comm’r of Soc. Sec., No. 12-13581, 2013 WL 3778947, *3 (E.D. Mich. July
18, 2013) (citing White v. Comm’r of Soc. Sec., 312 F. App’x 779, 788 (6th Cir. 2009)).
The ALJ’s failure to analyze, or even mention, Plaintiff’s depression anywhere in the
decision after finding the impairment not severe at step two undermines the ALJ’s conclusion
that Plaintiff is not disabled. In a factually similar case, the Patterson court found remand
necessary where, after evaluating the claimant’s depression and anxiety at steps two and three,
the “RFC analysis focuse[d] exclusively on plaintiff’s physical impairments without any
discussion of whether her non-severe mental impairments contribute, in any way, to an inability
to perform substantial gainful work.” Patterson, 2015 WL 5560121 at *5. Similarly here, after
the ALJ considered all of the evidence of record concerning Plaintiff’s depression at step two,
she went on to discuss only Plaintiff’s physical impairments in her RFC analysis. The Court
recognizes the step two analysis could support the conclusion that the ALJ merely determined
Plaintiff’s depression was so minimally limiting that no mental restrictions should factor into the
RFC. However, declining to infer the extent of the ALJ’s RFC considerations, the undersigned
follows the ruling in Patterson, and finds the detailed analysis at step two does not relieve the
ALJ of her duty to provide an explanation as to the holistic impact of all impairments, both
severe and non-severe, specifically in relation to Plaintiff’s RFC. Patterson, 2015 WL 5560121

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at *6 (finding remand necessary to include mental impairments in RFC analysis despite
reasoning at step two that could “support both a finding that the mental impairments are nonsevere and that these mild limitations do not restrict work activity.”).
Accordingly, remand is necessary in order for the ALJ to conduct a comprehensive RFC
analysis. The ALJ is instructed to consider the cumulative effects of Plaintiff’s non-severe
impairments, along with his severe impairments, and clearly state the reasons for her conclusions
in the RFC analysis.
VI. DECISION
For the foregoing reasons, the Magistrate Judge finds that the decision of the
Commissioner is not supported by substantial evidence. Accordingly, the Court VACATES the
decision of the Commissioner and REMANDS the case to the Social Security Administration.
IT IS SO ORDERED.
s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge
Date: December 18, 2015

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