Carpenter v. Commissioner of Social Security
Memorandum Opinion and Order affirming decision of Commissioner. Magistrate Judge James R. Knepp, II on 3/17/17. (A,P)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
MARY A. CARPENTER,
Case No. 3:16 CV 720
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER
Plaintiff Mary A. Carpenter (“Plaintiff”) filed a complaint against the Commissioner of
Social Security (“Commissioner”) seeking judicial review of the Commissioner’s decision to
deny supplemental security income (“SSI”) and disability insurance benefits (“DIB”). (Doc. 1).
The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented
to the jurisdiction of the undersigned in accordance with 28 U.S.C. § 636(c) and Civil Rule 73.
(Doc. 17). For the following reasons, the Commissioner’s decision is affirmed.
Plaintiff filed an application for SSI in February 2012 (Tr. 206-09) and DIB in August
2012 (Tr. 213-14).1 Her claims were denied initially and upon reconsideration. (Tr. 73, 91, 12021). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 163).
Plaintiff (represented by counsel) and a vocational expert (“VE”) testified at a hearing before the
ALJ on February 25, 2014. (Tr. 29-71). On April 7, 2014, the ALJ issued a written decision
finding Plaintiff not disabled. (Tr. 9-23). The Appeals Council denied Plaintiff’s request for
1. In the application for SSI, Plaintiff alleged a disability onset date of July 1, 2009 (Tr. 206,
231), but in her application for DIB she amended this date to January 1, 2009 (Tr. 213).
review, making the hearing decision the final decision of the Commissioner. (Tr. 1-5); 20 C.F.R.
§§ 404.955, 404.981. Plaintiff filed the instant action on March 23, 2016. (Doc. 1).
Personal and Vocational Background
Plaintiff was 48 years old at the time of the ALJ’s decision. (Tr. 23). She has an eighth
grade education. (Tr. 206, 236).
Plaintiff testified she was unable to do any lifting or carrying due to fibromyalgia, which
caused constant pain and numbness in her hands and arms, and pain in her legs and feet. (Tr. 3637). She described the pain as a “12” on a ten-point scale with pain medication. (Tr. 37). Plaintiff
estimated she could sit for five minutes at one time without discomfort, and stand for varying
lengths of time between five and twenty minutes. (Tr. 38). She stated she could only walk for
“[a] couple minutes” at a time. (Tr. 38). Plaintiff stated she would be unable to operate foot
controls because of pain in her feet (Tr. 39) and unable to operate hand controls due to pain and
numbness (Tr. 40). She did not use a cane. (Tr. 39). She usually took breaks when cleaning
dishes, but was able to “stay in pain” and complete the task at one time. (Tr. 40). Her boyfriend
cooked for her. (Tr. 40). Plaintiff was able to dress herself, perform personal hygiene tasks, and
bathe with a bath but not a shower (due to pain when standing). (Tr. 40).
Plaintiff was able to place her right hand on her head and frequently reach up over her
head with her right hand, but was unable to do so with her left hand due to “dislocat[ing] [her]
elbow a long time ago.” (Tr. 44-45). She could reach in all other directions frequently with both
hands. (Tr. 45). Handing objects with either hand caused her pain. (Tr. 46). She could climb
stairs, stoop, kneel, drive a car (Tr. 46-47), but later stated these activities were limited (Tr. 5759). She could not balance on ladders, ropes, or scaffolds (Tr. 46). Plaintiff stated she would be
unable to experience extreme cold occasionally, or “handle a moderately noisy environment, like
. . . an office setting”. (Tr. 47). She initially stated she would respond inappropriately to
supervisors, coworkers and the public, but upon further questioning conceded she would respond
appropriately. (Tr. 47-48). She also stated she would require additional breaks beyond the
standard fifteen minutes breaks twice a day and a half hour break for lunch due to pain. (Tr. 4849). Plaintiff clarified that there would be “no amount of breaks that could get [her] through the
day.” (Tr. 49). She stated she would be absent from work “100 percent of the time” and would be
unable to work even one day a month. Id.
Plaintiff testified she was depressed all the time, but denied thoughts of suicide. (Tr. 4142). She later admitted however she “wouldn’t mind so much if [she] just fell asleep and didn’t
wake up.” (Tr. 61). She also complained memory problems. (Tr. 42). Plaintiff stated she cried
“[a]ll the time” but had not sought treatment from a psychiatrist because she did not have
insurance and could not afford it. (Tr. 42-43). The ALJ asked if Plaintiff had “looked into
services that might be available for people who can’t afford . . . a doctor”. Plaintiff relayed she
had not done so because she “didn’t have the reason”. (Tr. 43). She conceded that crying all the
time is an appropriate reason to seek treatment. (Tr. 43). Plaintiff later stated, however, that she
received other treatment at the Fulton County Health Department Clinic, a free clinic. (Tr. 50).
She was unaware if this clinic offered mental health treatment2. (Tr. 51).
2. However, Plaintiff’s brief states: “Plaintiff has no medical insurance and received her medical
and psychological treatment through a Free Clinic and Emergency Room care.” (Doc. 12, at 5)
Plaintiff also completed an adult function report for the agency. (Tr. 253-60). She noted
her hobbies, interests, and social activities included: reading, watching television, playing games,
talking on the phone, playing cards, fishing, riding on motorcycles, using the internet, and
visiting friends. (Tr. 257). She also stated she shopped, drove a car, and performed household
chores including vacuuming and dusting. (Tr. 266-68).
The ALJ asked the VE whether a hypothetical individual of Plaintiff’s age, education,
and with Plaintiff’s two prior relevant jobs of phlebotomist and apartment manager with the
following restrictions could perform any work activity:
***I would like you further to assume that the individual is limited to less than
the full range of light exertional activities. Lifting—just a moment, please. No
lifting, no carrying. Five minutes of sitting at one time. Five to 20 minutes of
standing at one time. Walking no more than five minutes at a time. Pushing and
pulling is the same as lifting. No right foot controls—actually right or left. Cannot
use right hand controls. No reaching over head with the left, frequently with the
right. No right or left handling, fingering, and feeling.
No right or left handling, fingering, and feeling. None. Postural limitations, no
ladders and scaffolds. No balancing, occasional stooping, kneeling, crouching,
and crawling. Communicative limitation, limited to hearing and understanding
simple oral instructions. Environmental limitations, no unprotected heights,
moving mechanical parts, extreme cold or heat. Vibration and noise level, quiet,
limited to quiet. Mental limitations, limited to understanding, remembering, and
carrying out simple, routine tasks. Limited to simple work related decisions. And
limited to simple—oh, excuse me, I said that. One hundred percent absent. This is
not a person who can appear at work. Can the hypothetical individual perform any
of the past relevant work she previously had as actually or generally performed in
the national economy?
The VE responded the individual would be unable to perform Plaintiff’s past work or any
other work in the national economy. (Tr. 70).
On April 7, 2014, the ALJ issued a written a decision in which she made the following
findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act
through March 31, 2009.
2. The claimant has not engaged in substantial gainful activity since January 1,
2009, the alleged onset date.
3. Prior to March 31, 2009, the date last insured, there were no medical signs or
laboratory findings to substantiate the existence of a medically determinable
4. Relative to the claimant’s supplemental security income application date of
February 16, 2012, the claimant has the following medically determinable
impairments: obesity, fibromyalgia, mild cervical and lumbar degenerative
disc disease; sleep apnea, and status-post hysterectomy due to uterine cancer.
5. Since February 16, 2012, the claimant does not have an impairment or
combination of impairments that has significantly limited (or is expected to
significantly limit) the ability to perform basic work-related activities for 12
consecutive months; therefore, the claimant does not have a severe
impairment or combination of impairments.
6. The claimant has not been under a disability, as defined in the Social Security
Act, from January 1, 2009, through the date of this decision.
(Tr. 14-23) (internal citations omitted).
Relevant Medical Evidence
Fulton County Free Clinic and Emergency Room
In an undated treatment note from the Fulton County Free Clinic, Plaintiff reported
difficulty sleeping due to pain. (Tr. 454). The treating physician diagnosed her with insomnia and
restless leg syndrome, and prescribed Cymbalta. Id. At another appointment at the free clinic (the
date of which is illegible), Plaintiff complained of pain, numbness, lack of energy, and difficulty
sleeping. (Tr. 452). A physical examination revealed normal results. Id.
At an additional appointment, she reported pain in her feet and aching and numbness in
her hands. (Tr. 450). A physical examination of her skin, lungs, heart, abdomen, and neurological
system yielded normal results. Id. The physician noted possible fibromyalgia. Id.
In October 2010, Plaintiff complained of pain in her hands and feet; constant pain and
numbness; chest pain at times; and frequent headaches. (Tr. 448). A physical examination was
normal, except that Plaintiff tested positive for 16 out of 18 trigger points and two “sham” trigger
points. Id. The impression was “fibromyalgia versus somatization disorder”. Id. She was
prescribed Neurontin. Id.
In November 2010, at a follow-up medication appointment, Plaintiff reported right hand
and left groin pain. (Tr. 446). She was positive for 10 out of 18 trigger points and two “sham
points”. Id. The physician diagnosed her with fibromyalgia and increased the dose of Neurontin.
A few months later, in February 2011, Plaintiff complained of back pain and migraines,
and needed thyroid medicine. (Tr. 445). A physical examination yielded normal results. Id. It was
noted she was “no longer on Neurontin[,] but want[ed] more”. Id.
In May 2011, she continued to complain of hand and leg pain, dizziness, and daily
migraines. (Tr. 444). She was prescribed Citalopram. Id.
In July 2011, Plaintiff complained of severe, radiating left hip pain for the past three
days, and left foot numbness. (Tr. 419-20). A physical examination, found she was in no apparent
distress; had full range of neck motion; and decreased range of motion and muscle spasm in her
back, but no vertebral tenderness. (Tr. 421). The physician noted the examination was
“suggestive of at least an S-1 radiculopathy on the left.” Id. A CT scan of Plaintiff’s lumbar spine
revealed chronic mild degenerative disc and facet changes, but no acute lumbar abnormality. (Tr.
424). A CT scan of Plaintiff’s left hip was unremarkable. (Tr. 425). The physician diagnosed
Plaintiff with low back and hip pain; developmentally hypoplastic L5-S1; and degenerative joint
disease of the lower spine. (Tr. 422).
In August 2011, Plaintiff again reported hand and leg pain, dizziness, and daily
migraines. (Tr. 443). A physical examination was normal, and the physician listed fibromyalgia
as a diagnosis. Id.
Plaintiff went to the emergency room in October 2011 after experiencing an altered
mental status, agitation, nausea, and vomiting due to an accidental overdose after mixing
prescription medication with alcohol. (Tr. 349, 352-53). Also in October 2011, Plaintiff reported
fibromyalgia symptoms, poor sleep due to discomfort, irritability, and mood swings. (Tr. 442).
The physician referred her for a sleep study. Id. A treatment note dated a few months later reveals
Plaintiff did not undergo sleep study due to financial issues. (Tr. 441). The physician also noted
that while Plaintiff had been on numerous medications for fibromyalgia, none worked
“particularly well.” Id. A physical examination showed diffuse trigger points in her neck. Id. The
physician’s impression was fibromyalgia and insomnia. Id. Plaintiff was ordered to discontinue
Neurontin and start Sertraline. Id.
In March 2012, Plaintiff reported pain in her extremities and feet, dizziness, and difficulty
sleeping. (Tr. 440). She was feeling depressed and frustrated with her current status. Id. It was
noted the physician prescribed Zoloft at a previous visit, but she only took it for a month before
discontinuing the medication. Id.
Plaintiff went to the emergency room in April 2012 for a headache; left shoulder and arm
pain; nausea; and vomiting. (Tr. 463). A physical examination revealed a decreased
musculoskeletal range of motion; an inability to fully extend her left elbow due to a prior injury;
numbness, tingling, and tenderness over fibromyalgia trigger points in her upper back; and
“[w]eakness with oppositional testing of fingers in [her] left hand”. (Tr. 464). Her condition
improved with medication. Id. A CT head scan showed no evidence of a brain abnormality. (Tr.
468). A CT scan of Plaintiff’s cervical spine revealed chronic degenerative changes, but no
compromise of the bony canal. (Tr. 467).
The following month, it was noted Plaintiff underwent a sleep study. (Tr. 551). She was
diagnosed with obstructive sleep apnea and prescribed a CPAP machine. (Tr. 556, 581).
Also, in June 2012, Plaintiff reported continued fibromyalgia symptoms, and the physician
noted she reported “lack of relief from traditional interventions.” (Tr. 551). A physical
examination revealed “multiple trigger points at the typical areas for fibromyalgia diagnosis.” Id.
Plaintiff also went to the emergency room in June 2012 complaining of abdominal pain,
vomiting, and dizziness. (Tr. 483). An ovarian cyst was discovered and Plaintiff underwent
surgery to have it removed. (Tr. 487-88).
In August 2012, doctors diagnosed Plaintiff with uterine cancer, for which she underwent
a total vaginal hysterectomy. (Tr. 513-14, 549). Also in August, a note reveals Plaintiff
complained of depression. (Tr. 550).
In September 2012, Plaintiff reported a “host of somatic complaints[,] including
palpitations, dizziness, left eye twitching, insomnia, left arm pain, etc.”. (Tr. 547). A physical
examination revealed diffuse tenderness over her extremities, greater on the upper extremities. Id.
Also in September 2012, Plaintiff went to the emergency room complaining of difficulty
breathing. (Tr. 563). A physical examination of the respiratory system showed easy effort and
clear lungs. (Tr. 564). Plaintiff denied having depression or anxiety. Id. She was diagnosed with
right upper back pain consistent with muscular pain and a history of fibromyalgia. (Tr. 565).
In December 2012, Plaintiff complained of “pain all over”, depression, mood swings, and
menopausal symptoms. (Tr. 546). With regard to fibromyalgia, the physician noted: “She has
failed multiple therapeutic attempts. Likely a component of depression and somatization is
present.” (Tr. 545).
Plaintiff continued to complain of headaches and dizziness in June 2013. (Tr. 543). She
also reported continued discomfort. Id. A physical examination of her thyroid, lungs, heart, and
extremities was normal. Id.
State Agency Reviewers
On May 8, 2012, state agency reviewer Bruce Goldsmith, Ph.D., determined Plaintiff did
not have severe medically determinable mental impairment. (Tr. 84). He noted under the
credibility assessment section: “[Claimant’s] psychological allegation is credible but not severe.”
(Tr. 85). On reconsideration, Deryck Richardson, Ph.D., confirmed the conclusion that Plaintiff
did not have a medically determinable mental impairment. (Tr. 99-100).
In August 2012, a state agency reviewing physician, Sarah Long, M.D., reviewed the
record. Under the “Medically Determinable Impairments and Severity” section, fibromyalgia is
listed as a severe primary impairment. (Tr. 83-84). Dr. Long then completed a physical residual
functional capacity assessment, in which she found Plaintiff was able to perform light work with
limited pushing/pulling with her left upper extremity. (Tr. 85-88). Specifically, she found
Plaintiff could occasionally lift/carry twenty pounds; frequently lift/carry ten pounds; stand/walk
for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday;
was limited with pushing and pulling with her left upper extremities; frequently climb
ramps/stairs; occasionally climb ladders/ropes/scaffolds; was unlimited with regard to balancing,
stooping, kneeling, crouching, and crawling; limited in reaching with her left in front, laterally, or
overhead; limited in handling and fingering with her left; unlimited with feeling; and should avoid
concentrated exposure to hazards. Id.
On reconsideration, Lynne Torello, M.D., confirmed Dr. Long’s findings. (Tr. 99-103).
Fibromyalgia was again listed as a severe impairment. (Tr. 99).
In December 2013, Sushil Sethi, M.D., conducted a physical consultative examination.
(Tr. 526-39). Plaintiff reported fibromyalgia with pain in both shoulder and legs since 2009, and
migraine headaches. (Tr. 527). Plaintiff reported using a CPAP machine for sleep apnea without
any complications in the form of recurrent daytime sleepiness. Id. A physical examination
revealed Plaintiff was in no acute distress; had normal range of motion in the hips, and ankles,
and upper extremities; a normal gait; could walk equally on her heels and her toes; and could
squat. (Tr. 528-29). Her knees showed flexion at 140 degrees and extension 0 degrees. (Tr. 528).
She had a reduced range of motion in her dorsolumbar spine. (Tr. 538). Plaintiff’s ability to
grasp, pinch, and perform fine manipulation and coordination was normal. (Tr. 529). She had no
muscle weakness in the extremities, no muscle spasms, no swelling, and no neurological
Dr. Sethi concluded: “Based on my objective findings, the claimant’s ability to do workrelated physical activities such as sitting, standing, walking, lifting, carrying and handling objects
may be slightly limited.” Id. He determined Plaintiff could sit for eight hours in an eight-hour
workday; stand and walk for six hours in an eight-hour workday; frequently lift 20 to 25 pounds;
and occasionally lift 30 to 50 pounds. (Tr. 529). He also noted she could frequently operate foot
controls (Tr. 532), engage in postural activity (Tr. 533), and be exposed to unprotected heights
and moving mechanical parts (and continuously be exposed to other environmental limitations)
In May 2012, Melissa Lanza, Ph.D., conducted a psychological consultative evaluation of
Plaintiff. (Tr. 476-80). A mental status examination revealed: Plaintiff was on time for the
evaluation, appropriately dressed, polite, cooperative; and had normal speech, well-organized
and logical thought process, calm demeanor, and good insight and judgment. (Tr. 478). Dr.
Lanza diagnosed her with dysthymic disorder and assigned a global assessment of functioning
(GAF) score of 55.3 (Tr. 479).
In the area of “Abilities and limitations in understanding, remembering, and carrying out
instructions”, Dr. Lanza noted Plaintiff reported problems understanding verbal and written
information; and problems with short and long term memory. Id. In the area of “Abilities and
limitations in maintaining attention and concentration, and in maintaining persistence and pace,
to perform simple tasks and to perform multi-step tasks”, Dr. Lanza noted Plaintiff “appeared
able to maintain attention and concentration to topic.” Id. Plaintiff, however, reported at times her
mind “wanders off or goes blank” and that she would require frequent physical breaks during
tasks, adding that she relied on others to complete some daily tasks. Id. In the area of “Abilities
and limitations in responding appropriately to supervision and to coworkers in a work setting”,
3. The GAF scale represented a “clinician’s judgment” of an individual’s symptom severity or
level of functioning. Am. Psych. Ass’n, Diagnostic & Statistical Manual of Mental
Disorders, 32–33 (4th ed., Text Rev.2000). “The most recent (5th) edition of the Diagnostic and
Statistical Manual of Mental Disorders does not include the GAF scale.” Judy v. Colvin, 2014
WL 1599562, at *11 (S.D. Ohio); see also Diagnostic and Statistical Manual of Mental
Disorders 16 (5th ed. 2013) (“DSM–V”) (noting recommendations “that the GAF be dropped
from [DSM–V] for several reasons, including its conceptual lack of clarity ... and questionable
psychometrics in routine practice”). However, as set forth in the DSM—IV, a GAF score of 55
indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers and co-workers). Id. at 34.
Dr. Lanza noted Plaintiff was pleasant and cooperative, and reported a history of getting along
with supervisors and coworkers; thus, Dr. Lanza found Plaintiff would be able to respond
appropriately to coworkers and supervisors. Id. In the final area, “Abilities and limitations in
responding appropriately to work pressures in a work setting”, Plaintiff reported shutting down in
response to work pressures of stressful situations, withdrawing from others, and isolating herself
in her room. (Tr. 480). Dr. Lanza noted: “It appears that the claimant would have difficulty
responding appropriately to work pressures at this time.” Id.
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the Court “must affirm the
Commissioner’s conclusions absent a determination that the Commissioner has failed to apply
the correct legal standards or has made findings of fact unsupported by substantial evidence in
the record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial
evidence is more than a scintilla of evidence but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Besaw v. Sec’y
of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner’s findings
“as to any fact if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial
evidence or indeed a preponderance of the evidence supports a claimant’s position, the court
cannot overturn “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).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “Disability” is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 20 C.F.R. § 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner follows a five-step evaluation process—found at 20 C.F.R. § 404.1520—to
determine if a claimant is disabled:
Was claimant engaged in a substantial gainful activity?
Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which
substantially limits an individual’s ability to perform basic work
Does the severe impairment meet one of the listed impairments?
What is claimant’s residual functional capacity and can claimant perform
past relevant work?
Can claimant do any other work considering her residual functional
capacity, age, education, and work experience?
Under this five-step sequential analysis, the claimant has the burden of proof in Steps
One through Four. Walters, 127 F.3d at 529. The burden then shifts to the Commissioner at Step
Five to establish whether the claimant has the residual functional capacity to perform available
work in the national economy. Id. The court considers the claimant’s residual functional
capacity, age, education, and past work experience to determine if the claimant could perform
other work. Id. Only if a claimant satisfies each element of the analysis, including inability to do
other work, and meets the duration requirements, is she determined to be disabled. 20 C.F.R. §§
404.1520(b)-(f); see also Walters, 127 F.3d at 529.
Plaintiff only challenges the ALJ’s denial of the SSI claim.4 With regard to the SSI claim,
Plaintiff argues the ALJ erred in Step Two of the sequential evaluation by finding Plaintiff’s
impairments not severe.
Step Two - Severe Impairments
Plaintiff alleges the ALJ erred in ending the analysis at Step Two by finding none of
Plaintiff’s impairments severe. To meet her burden at Step Two of the sequential evaluation, a
plaintiff must show she has a medically determinable physical or mental impairment which is
severe in nature. 20 C.F.R. § 416.920. A severe impairment is one which significantly limits an
individual’s ability to perform basic work activities. 20 C.F.R. §§ 416.920(c), 416.921; Long v.
Apfel, 1 F. App’x 326, 331–32 (6th Cir. 2001). Basic work activities are defined by the
regulations as “‘abilities and aptitudes necessary to do most jobs,’ and include: (1) physical
functions; (2) the capacity to see, hear and speak; (3) ‘[u]nderstanding, carrying out, and
remembering simple instructions;’ (4) ‘[u]se of judgment;’ (5) ‘[r]esponding appropriately to
supervision, co-workers, and usual work situations;’ and (6) ‘[d]ealing with change in a routine
work setting.’”. Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 190 (6th Cir. 2009) (quoting
20 C.F.R. §§ 404.1521(a)-(b) and 416.921(a)-(b)).
An impairment is only considered non-severe if it is a “slight abnormality that minimally
affects work ability regardless of age, education, and experience.” Higgs v. Bowen, 880 F.2d
4. To qualify for DIB, Plaintiff must have been under disability on or before the date her insured
status expired on March 31, 2009. (Tr. 14); 42 U.S.C. §§ 423(a)(c); 20 C.F.R. §§ 404.131(a),
404.320(b)(2); Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990). The record reveals no
treatment records from prior to this date and Plaintiff does not challenge the ALJ’s denial of the
DIB claim. She therefore waives challenge. See Kennedy v. Comm’r of Soc. Sec., 87 F. App’x
464, 466 (6th Cir. 2003) (issues not raised in claimant’s brief are waived). Furthermore, in her
reply brief, Plaintiff clarifies she does not challenge the DIB denial. (Doc. 14, at 1-2).
860, 862 (6th Cir. 1988); Salmi v. Sec’y of H.H.S., 774 F.2d 685, 691-93 (1985). The Sixth
Circuit considers the Step Two severity requirement as a de minimis hurdle in the disability
determination process. Id. If a claimant has at least one severe impairment, the ALJ must
continue the disability evaluation and consider all the limitations caused by the claimant’s
impairments, severe or not. See Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 576 (6th Cir.
2009) (“After an ALJ makes a finding of severity as to even one impairment, the ALJ ‘must
consider limitations and restrictions imposed by all of an individual’s impairments, even those
that are not ‘severe.’” (quoting SSR 96-8p, 1996 WL 374184, at *5)). If a claimant does not have
any severe impairments, as the ALJ found was the case here, the disability evaluation ends
because the individual is considered not disabled. 20 C.F.R. § 416.920(c).
Here, at Step Two, the ALJ determined since Plaintiff’s SSI application date of February
16, 2012, she had the following medically determinable impairments: obesity, fibromyalgia, mild
cervical and lumbar degenerative disc disease, sleep apnea, and status post hysterectomy due to
uterine cancer. (Tr. 15). The ALJ, however, found none of these impairments to be severe. Id.
(“Since February 16, 2012, the claimant does not have an impairment or combination of
impairments that has significantly limited (or is expected to significantly limit) the ability to
perform basic work-related activities for 12 consecutive months; therefore, the claimant does not
have a severe impairment or combination of impairments (20 CFR 404.1521 et seq. and 416.921
et seq.).”). In making this determination, the ALJ specifically noted:
Basic work activities are the abilities and aptitudes necessary to do most jobs.
Examples of these include:
1. Physical functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling;
2. Capacities for seeing, hearing, and speaking;
3. Understanding, carrying out, and remembering simple instructions;
4. Use of judgment;
5. Responding appropriately to supervision, co-workers, and usual work
6. Dealing with changes in a routine work setting.
(Tr. 15-16) (citing SSR 85-28); see also 20 C.F.R. § 416.921(b).
First, Plaintiff asserts the ALJ’s finding “Plaintiff has no limitations from her
impairments” conflicts with the consultative examiners’ determination Plaintiff would have
certain limitations due to both physical and mental impairments. (Doc. 12, at 11). The
Commissioner responds the ALJ appropriately considered and assigned little weight to the
opinions of Drs. Sethi and Lanza. (Doc. 13, at 12-13, 15-16).
Social Security regulations state “[r]egardless of its source, we will evaluate every
medical opinion we receive.” 20 C.F.R. § 416.927(c). A “medical opinion” is defined by
regulation as a “statement from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity of your impairments . . . .” Id. at §
416.927(a)(2). “Acceptable medical sources” includes licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language
pathologists. Id. at § 416.913(a)(1)-(5).
Under the regulations, there exists a hierarchy of medical opinions: first, is a treating
source whose opinion is entitled to deference because it is based on an ongoing treatment
relationship; second, is a non-treating source, which are those medical sources who have
examined but not treated the Plaintiff; and lastly, is a non-examining source, those who render
opinions based on a review of the medical record as a whole. 20 C.F.R. § 416.902.
When evaluating a medical source, an ALJ must weigh medical opinions in the record
based on certain factors. Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 660 (6th Cir. 2009)
(citing 20 C.F.R. § 404.1527(d)(2)). These factors include the length of treatment relationship,
the frequency of examination, the nature and extent of the treatment relationship, the
supportability of the opinion, the consistency of the opinion with the record as a whole, and the
specialization of the treating source. Id. An ALJ must provide “good reasons” for the weight
given to a treating source, Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 391 (6th Cir. 2004), but
this is not so if a non-treating or non-examining source is involved. Smith v. Comm’r of Soc.
Sec., 482 F.3d 873, 876 (6th Cir. 2007) (holding “the SSA requires ALJs to give reasons for only
treating source” opinions) (emphasis in original); Murray v. Comm’r of Soc. Sec., 2013 WL
5428734, at *4 (N.D. Ohio) (finding “[n]otably, the procedural ‘good reasons’ requirement does
not apply to non-treating physicians.”).
Here, Dr. Sethi found, based on his objective findings, that Plaintiff “may be slightly
limited” in sitting, standing, walking, lifting, carrying, and handling. (Tr. 529). The ALJ
appropriately considered Dr. Sethi’s examination and opinion in his decision, stating:
Sushil Sethi, M.D., examined the claimant in December 2013 at the request of the
State agency (Exhibit 8F). The claimant acknowledged to the doctor that she had
not been required to undergo any chemotherapy or radiation relative to her uterine
cancer. She noted that she used a CPAP machine due to a diagnosis of sleep apnea
and denied any issues with recurrent daytime sleepiness or accidents. Regarding
her thyroid, the claimant admitted that she was prescribed supplemental thyroid
medication with good results. Dr. Sethi stated that the claimant’s weight is 255
pounds and that her lower extremities showed no edema, cyanosis, or clubbing of
toenails. She had normal range of motion at the hips and ankles and was able to
walk on her tiptoes and heels and squat. Her gait was normal and she did not
require any ambulatory aids. Her upper extremities also showed normal range of
motion with no impingement at the shoulders and normal grasping, pinching,
manipulation, and fine coordination. Tinel and Phalen tests were negative at the
wrist and elbow levels with no muscle weakness or atrophy with arterial pulses
being 5+. Range of motion of the cervical, thoracic, and lumbar spine were all
normal with straight leg testing negative. The claimant’s motor, sensory, and deep
tendon reflexes were normal. The doctor diagnosed the claimant with history of
fibromyalgia, pain in the shoulders, hips, legs, and arms, sleep apnea,
hypothyroidism, and total hysterectomy for uterine cancer. It was the doctor’s
opinion that the claimant would be slightly limited in her ability to walk, stand,
sit, lift, carry, and handle objects and that she could sit, stand, and walk each for 6
hours during an 8-hour workday. Dr. Sethi further opined that the claimant could
occasionally lift up to 50 pounds and frequently up to 25 pounds. In an
accompanying medical source statement, the doctor opinioned that the claimant
could sit for 8 hours without interruption and could stand or walk each for 6 hours
without interruption and could in total during an 8-hour workday sit, stand, or
walk for 8 hours. He further stated that the claimant could continuously use her
bilateral hands, frequently use her feet and perform postural activates, frequently
be exposed to unprotected heights and moving machinery, and continuously be
exposed to other environmental limitations such as operating a motor vehicle, be
exposed to pulmonary irritants or temperature extremes, and be exposed to
(Tr. 18-19); See SSR 06-03p, 2006 WL 2329939, at *3.
The ALJ next appropriately provided an explanation as to why Dr. Sethi’s opinion was
afforded little weight:
Consequently, the totality of the evidence does not support the existence of a
severe physical impairment. In reaching this determination, the opinion of Dr.
Sethi has been considered and is given limited weight. As discussed above, the
doctor’s examination failed to show any objective findings that would impose
limitations on the claimant’s ability to perform work tasks/activities as the
claimant had normal range of motion, was able to walk with a normal gait, had
normal ability to grasp, hold, pinch, and perform fine manipulation, no limitation
or impingement regarding her shoulder and cervical, thoracic, or lumbar regions.
Consequently, the objective record does not reflect the requirement to impose any
limitations on the claimant’s ability to lift, carry, walk, stand, or walk or in
performing any exertional or non-exertional activities.
The ALJ’s explanation adequately touches on some of the relevant factors, explaining
that little weight was given to the opinion because it was inconsistent with and unsupported by
Dr. Sethi’s examination, and inconsistent with the objective medical evidence as a whole. 20
C.F.R. § 404.1527(c). The ALJ, therefore, did not err in assigning Dr. Sethi’s opinion “limited
5. Even if the ALJ erred in her analysis of Dr. Sethi’s opinion, the Court agrees with the
Commissioner’s assertion that the error is harmless. The Commissioner argues that since the
Similarly, with regard to Plaintiff’s mental impairments, the ALJ adequately considered
the opinion of Dr. Lanza and provided an adequate explanation for providing it little weight,
once again touching upon the factors of consistency and supportability of the opinion. (Tr. 21);
see 20 C.F.R. § 404.1527(c). The ALJ stated:
At the request of the State agency, Melissa K. Lanza, Ph.D., evaluated the
claimant in May 2012 (Exhibit 5F). The doctor noted that the claimant was able to
make important decisions that included maintaining house and managing her
finances and that her speech was well-organized and logical. Dr. Lanza diagnosed
her with dysthymic disorder and assigned a GAF of 55. It was her opinion that it
was likely that the claimant would be able to respond appropriately to coworkers
and supervision and that she appeared able to maintain attention and
concentration to topic. Because the claimant reporting shutting herself down in
response to work pressures or stressful situations, it was the doctor’s opinion that
the claimant would have difficulty in responding appropriately to work pressure at
that time (Id.). Limited weight is afforded to Dr. Lanza’s opinion in that the
doctor’s opinion regarding the claimant’s ability to respond appropriately to work
pressures is based solely upon the claimant’s self-report and not upon the
objective findings contained in the record. There was no notation that the claimant
experienced any stress-related “shutdown” during the doctor’s evaluation.
Further, the claimant is able to attend medical appointments, seek emergency
room treatment when she deems it necessary, shop, drive, and play cards and
video games. These activities show that the claimant can respond appropriately in
stressful situations. The doctor’s opinion regarding the claimant’s ability to relate
to others and maintain attention and concentration is supported by the objective
Likewise, the assigned GAF of 55, which denotes moderate symptoms, has been
considered and is given little weight as there is no explanation as to whether this
score is associated with a symptom or functional assessment, and the record does
not show the claimant requiring psychotropic medication from her primary
physician or that she was referred for mental health services by him: see:
Diagnostic and Statistical Manual of Mental Disorders, (DSM-IV-TR), 4th ed.,
text revision, (July 2000).
agency had previously determined that Plaintiff could perform light work (see Tr. 118), even if
the ALJ had adopted Dr. Sethi’s more restrictive opinion, she would have found Plaintiff not
disabled at Step Five of the sequential evaluation. (Doc. 13, at 13). The undersigned agrees.
Additionally, because the ALJ found a medically determinable mental impairment, she
went on to analyze it under the functional areas set out in 12.00C of the Listing of Impairments
in correlation with the record and Dr. Lanza’s findings. (Tr. 22); see 20 C.F.R., Part 404, Subpart
P, Appendix 1). The ALJ concluded Plaintiff had mild limitation in the area of activities of daily
living; social functioning; concentration; persistence, or pace; and no episodes of
decompensation. (Tr. 22). Because Plaintiff’s mental impairment caused no more than mild
limitation, she determined it was not a severe impairment. Id.; see 20 C.F.R. § 416.920; see also
Williamson v. Sec’y of Health and Human Servs., 796 F.2d 146, 151 (6th Cir. 1986) (recognizing
that the analysis may stop at Step Two, but noting that, if a claimant arguably satisfies the
criteria of a listed impairment, it is not proper to preclude consideration of the listing).
The ALJ is tasked with making a determination about whether an individual’s
impairments are severe, not whether the impairments result in any limitations. Therefore, the
ALJ’s determination is not entirely inconsistent with the consultative examiners’ opinion. The
consultative examiners did find certain limitations, but it is up to the ALJ to determine whether
these limitations are severe as required by Step Two of the sequential evaluation. The Court finds
the ALJ appropriately considered the evaluations and opinions of Drs. Sethi and Lanza and
provided adequately explanation as to her determination they were entitled to little weight. See
20 C.F.R. § 404.1527(c).
State Agency Reviewers
Second, Plaintiff argues “the ALJ failed altogether to discuss the opinions of the State
Agency Medical reviewers that Plaintiff’s physical impairments were severe.” (Doc. 12, at 1617). The Commissioner briefly responds that this argument is “moot” because the state agency
physicians found Plaintiff was capable of performing light work. (Doc. 13, at 13, n.5). Thus,
even if “the ALJ adopted these limitations, the agency already determined that such work
restrictions did not prevent Plaintiff from performing work at step five of the sequential
evaluation process.” The Commissioner essentially asserts that if the ALJ erred, it is harmless.
Initially, the ALJ did briefly mention the opinions of the state agents in relation to
Plaintiff’s SSI claim. She stated:
The State agency medical consultants’ mental assessments associated with her
supplemental security income application are given great weight because, as
discussed above, the objective record does not support the existence of a severe
mental impairment (Exhibits 1A, 3A, 4A).
While the ALJ gave great weight to the state agency reviewers’ opinion Plaintiff did not
have a severe mental impairment, the ALJ does not address the state agency reviewers’ finding
of fibromyalgia as a severe impairment. (Tr. 83-84, 99). Additionally, and presumably, state
agency physician Dr. Long would not have proceeded to a physical RFC assessment had she not
found a severe impairment.
However, the ALJ need not “discuss all the evidence submitted, and an ALJ’s failure to
cite specific evidence does not indicate that it was not considered.” Simons v. Barnhart, 114 F.
App’x 727, 733 (6th Cir. 2004) (internal citation omitted); see also Baranich v. Barnhart, 128 F.
App’x 481, 488–89 (6th Cir. 2005). Such is the case here. It is clear from the record the ALJ
considered Plaintiff’s impairment of fibromyalgia because she discussed medical evidence
relating to such throughout her thorough analysis. (Tr. 16-20). After considering the entire
medical evidence, she determined Plaintiff had medically determinable impairments of obesity,
fibromyalgia, mild cervical and lumbar degenerative disc disease; sleep apnea, and status- post
hysterectomy due to uterine cancer, but that none of these conditions were severe because they
did not significantly limited her physical or mental ability to do basic work activities. (Tr. 21)
(“Consequently, the totality of the evidence does not support the existence of a severe physical
impairment.”). Furthermore, diagnosis of a condition alone does not necessarily make the
condition severe. See Higgs, 880 F.2d at 863 (affirming dismissal where the record contained no
objective medical evidence to support a severe impairment). “The mere diagnosis of [an
impairment], of course, says nothing about the severity of the condition.” Id.
In making this determination, the ALJ considered Plaintiff’s subjective complaints, but
found they were not entirely credible. (Tr. 20). Contrary to Plaintiff’s assertion, the ALJ
appropriately considered whether Plaintiff’s statements regarding her impairments were
consistent with other evidence, including objective medical evidence. Pursuant to Step Two,
Social Security Ruling 16-3p states:
An individual’s statements may address the frequency and duration of the
symptoms, the location of the symptoms, and the impact of the symptoms on the
ability to perform daily living activities. An individual’s statements may also
include activities that precipitate or aggravate the symptoms, medications and
treatments used, and other methods used to alleviate the symptoms. We will
consider an individual’s statements about the intensity, persistence, and limiting
effects of symptoms, and we will evaluate whether the statements are consistent
with objective medical evidence and the other evidence.
2016 WL 1119029, at *5.
Additionally, substantial evidence supports the ALJ’s determination. First, the ALJ did
not err in finding the severity of Plaintiff’s complaints inconsistent with the objective medical
evidence. (Tr. 20). Objective medical tests revealed mild degenerative changes in Plaintiff’s
lumbar spine (Tr. 424), an unremarkable left hip (Tr. 425), and degenerative changes in the
cervical spine with no critical compromise of the bony canal (Tr. 467-68). Moreover, while there
were a few instances showing a decreased range of motion in her back (Tr. 421) and left elbow
(Tr. 464), and positive trigger points (including some “sham” trigger points) for fibromyalgia
(Tr. 441, 446, 448, 464, 551), a large portion of physical examinations largely resulted in normal
results (Tr. 443, 445, 448, 450, 452, 543). During the consultative examination with Dr. Sethi,
Plaintiff exhibited only slight limitations. (Tr. 528-29, 536-39). Second, the ALJ appropriately
noted Plaintiff’s conservative treatment was inconsistent with the severity of her complaints. (Tr.
20). See, e.g., Lester v. Soc. Sec. Admin., 596 F. Appx. 387, 389 (6th Cir. 2015) (finding the ALJ
“reasonably discounted [the treating physician’s] medical opinion on the basis that it conflicted
with other substantial evidence in the record,” including his own treatment notes which
“generally showed that [the claimant] was receiving conservative treatment . . . ”). The record
reveals Plaintiff’s impairments were managed with medication. (Tr. 440, 441, 445, 446, 448,
454, 464). Third, the ALJ appropriately noted Plaintiff’s ability to perform certain household
chores and engage in certain activities revealed she was not as limited as she alleged. See 20
C.F.R. § 416.929(c)(3)(i). Plaintiff stated she performed household chores (including vacuuming
and dusting), drove a car, shopped, played video games, spent time on the internet, and rode on a
motorcycle. (Tr. 20) (citing Tr. 257, 266-68, 478). Fourth, the ALJ appropriately found
Plaintiff’s history of uterine cancer and sleep apnea were under control. (Tr. 20). The record does
not show any further treatment for uterine cancer following an August 2012 hysterectomy. (Tr.
513-14). Also, her CPAP machine controlled her sleep apnea. (Tr. 20) (citing Tr. 527).
Furthermore, even if the ALJ had erred at Step Two, the error would be harmless. See
Kobetic v. Comm’r of Soc. Sec., 114 F. App’x 171, 173 (6th Cir. 2004) (where remand would be
an “idle and useless formality”, the Court is not required to “convert judicial review of agency
action into a ping-pong game.”) (quoting N.L.R.B. v. Wyman-Gordon Co., 395 U.S. 759, 766 n.6
(1969)). As the Commissioner points out, even if the ALJ had adopted the state agency
reviewers’ opinion Plaintiff was limited to light work, the agency determined these limitations
did not prevent her from working at Step Five of the Sequential Evaluation. (Doc. 13, at 13)
(citing Tr. 118-19). Thus, remanding the case would essentially be futile.
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision denying benefits supported by substantial
evidence, and therefore affirms the decision of the Commissioner.
s/James R. Knepp II
United States Magistrate Judge
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