Gerhart v. Commissioner of Social Security Administration

Filing 19

Memorandum Opinion and Order. 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 back to the Social Security Administration. Signed by Magistrate Judge Kenneth S. McHargh on 3/29/12. (R,N)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOANNE GERHART,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

)
)
)
)
)
)
)
)
)

CASE NO. 5:10-CV-2649

MAGISTRATE JUDGE MCHARGH

MEMORANDUM OPINION & ORDER

Defendant.

This case is before the undersigned pursuant to the consent of the parties. (Doc. 13). The
issue before the undersigned is whether the final decision of the Commissioner of Social Security
(the “Commissioner”) denying Plaintiff Joanne Gerhart’s applications 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, and Supplemental Security Income benefits under Title XVI of the Social Security Act,
42 U.S.C. § 1381 et seq., is supported by substantial evidence and therefore, conclusive.
For the reasons set forth below, the Court VACATES the decision of the Commissioner
and REMANDS the case back to the Social Security Administration.
I. INTRODUCTION & PROCEDURAL HISTORY
On June 21, 2006, Plaintiff Joanne Gerhart (“Plaintiff” or “Gerhart”) filed applications
for a Period of Disability and Disability Insurance benefits and Supplemental Security Income
benefits alleging that she became disabled on March 14, 2003, due to suffering from back pain,
osteoarthritis, and spinal stenosis. (Tr. 70-71, 137, 155). Gerhart’s applications were denied
initially and upon reconsideration. (Tr. 74-81, 86-91). Thereafter, Plaintiff requested a hearing

before an administrative law judge to contest the denial of her applications. (Tr. 93). The Social
Security Administration granted Plaintiff’s request and scheduled a hearing. (Tr. 96-100).
On July 22, 2008, Administrative Law Judge Joseph Shortill (“ALJ Shortill” or the
“ALJ”) convened a hearing via video to evaluate Plaintiff’s applications. (Tr. 22-69). ALJ
Shortill presided over the hearing from Springfield, Massachusetts, and Gerhart, along with her
attorney, appeared in Mansfield, Ohio. (Tr. 24). A vocational expert, Mr. James Parker (the
“VE”), also appeared and testified at the hearing. (Tr. 57-69). On October 22, 2008, the ALJ
issued his decision and determined that Gerhart was not disabled. (Tr. 13-21). In his written
decision, ALJ Shortill applied the five-step sequential analysis,1 and concluded that Plaintiff
retained the ability to perform work which existed in significant numbers in the national

1

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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economy and thus, was not disabled. (Id.) Following this ruling, Gerhart sought review of the
ALJ’s decision from the Appeals Council. (Tr. 6). But, the council denied Plaintiff’s request,
thereby making ALJ Shortill’s decision the final decision of the Commissioner. (Tr. 1-5).
Gerhart now seeks judicial review of the Commissioner’s final decision pursuant to 42 U.S.C. §§
405(g) and 1383(c).
Gerhart, born on June 5, 1960, was 42 years old on her alleged onset date, and 48 years
old at the time of her hearing before ALJ Shortill, which means that she was considered as a
“younger person” for Social Security purposes at all relevant times. (Tr. 20, 29); 20 C.F.R. §§
404.1563(c), 416.963(c). Gerhart completed the twelfth grade and graduated from high school.
(Tr. 29). She has past experience working as a cashier, vending machine attendant, self-service
gasoline station manager, deli cutter/slicer and assembler. (Tr. 59-60).
II. ALJ’s RULING
ALJ Shortill made the following relevant findings of fact and conclusions of law. At step
one of the five-step sequential analysis, the ALJ found that Gerhart had not engaged in
substantial gainful activity since her alleged onset date of March 14, 2003. (Tr. 15). At step
two, ALJ Shortill held that Plaintiff suffered from the following severe impairments:
degenerative disc disease, obesity, depression and a history of substance abuse. (Id) However,
at step three, ALJ Shortill ruled that none of these impairments, individually or combined, met or
equaled one of the listed impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. 15-16) Before moving to step four, the ALJ assessed Gerhart’s residual functional capacity
(“RFC”) to work. (Tr. 16-20). ALJ Shortill determined that Plaintiff retained the RFC to “lift
and carry 10 pounds frequently and 20 pounds occasionally, stand and walk 2 hours in an 8-hour
workday, and sit 6 hours in an 8-hour workday.”
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(Tr. 16).

The ALJ also placed other

restrictions on Plaintiff’s physical and mental capacities to work.

(Id.)

Because of these

limitations, at step four it was determined that Plaintiff was unable to return to any of her past
relevant work. Nonetheless, ALJ Shortill found that Gerhart was able to perform other work
existing in significant numbers in the national economy, such as that of a mall information
clerk.2 (Tr. 20-21). Therefore, the ALJ ruled that Plaintiff was not disabled.
III. 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.
IV. 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

2

Per the transcript, the VE labeled this position as a “loan information clerk”. (Tr. 65).
However, the corresponding code from the Dictionary of Occupational Titles provided by the
VE, DOT 352.667-010, references the positions of a host/hostesses and stewards/stewardesses,
DICOT 352.667-010, 1991 WL 672913, which would appear to align with the ALJ’s description
of this position as a “mall information clerk”. Because neither party acknowledged this
discrepancy, the Court presumes that this is merely an error in the transcript.
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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 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).
V. ANALYSIS
Plaintiff raises one over-arching objection to the ALJ’s decision.

Gerhart submits that

ALJ Shortill improperly evaluated her allegations of disabling pain. Plaintiff’s argument is
based upon several alleged errors she contends ALJ Shortill made in reviewing her applications.
Gerhart purports that the ALJ failed to evaluate her subjective complaints of pain under the
factors set forth in Social Security Ruling 88-13, provided baseless reasons for discrediting her
testimony, overlooked several pieces of evidence in the record, misstated other evidence in the
record, and erroneously failed to deem one of her impairments as severe at the second step of the
analysis.

Remand is appropriate due to the ALJ’s failure to properly evaluate Plaintiff’s

credibility and allegations of pain.

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1. Assessment of Plaintiff’s Pain
“An ALJ’s findings based on the credibility of the applicant are to be accorded great
weight and deference, particularly since [the] ALJ is charged with the duty observing a witness’s
demeanor and credibility.” Vance v. Comm’r of Soc. Sec., 260 F. App’x 801, 806 (6th Cir. 2008)
(citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)). Notwithstanding this
standard, the ALJ must clearly state his reasons for rejecting a claimant’s complaints as
incredible. Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). The ALJ’s written opinion
“must contain specific reasons for the finding on [the claimant’s] credibility, supported by the
evidence in the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and
the reasons for that weight.” SSR 96-7p, 1996 WL 374186, at *2.
The Sixth Circuit has explained that “[s]ubjective complaints of pain or other symptoms
shall not alone be conclusive evidence of disability.” Vance, 260 F. App’x at 806 (citing Arnett
v. Comm’r of Soc. Sec., 76 F. App’x 713, 716 (6th Cir. 2003)) (internal quotations omitted).
Instead, there must be some objective evidence to substantiate the claimant’s statements
regarding her pain. SSR 88-13, 1988 WL 236011, at *1. This circuit has established a two-part
test to evaluate a claimant’s complaints of disabling pain when the claimant’s pain forms the
basis for the request of benefits.   20 C.F.R. §§ 416.929(a), 404.1529(a); Rogers v. Comm’r of
Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Duncan v. Sec’y of Health & Human Servs., 801
F.2d 847, 853-54 (6th Cir. 1986); Felisky, 35 F.3d at 1039-40. First, the ALJ must determine
whether the claimant has an underlying medically determinable impairment which could
reasonably be expected to produce the claimant’s symptoms. Rogers, 486 F.3d at 247. Second,
if such an impairment exists, then the ALJ must evaluate the intensity, persistence and limiting
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effects of the symptoms on the claimant’s ability to work. Id. The ALJ should consider the
following factors in evaluating the claimant’s symptoms: the claimant’s daily activities and
functional restrictions; the nature, location, duration, frequency and intensity of the claimant’s
symptoms; any precipitating or aggravating factors; the type, dosage, effectiveness and side
effects of any medication taken to alleviate the symptoms; treatment, other than medication, the
claimant receives to relieve the pain; measures used by the claimant to relieve the symptoms; and
statements from the claimant and the claimant’s treating and examining physicians. Id.; Felisky,
35 F.3d at 1039-40; SSR 88-13, 1988 WL 236011, at *3; SSR 96-7p, 1996 WL 374186, at *3.
In applying this two-part test to Gerhart’s claim, ALJ Shortill first concluded that there
was sufficient evidence showing that Plaintiff suffered from a medically determinable
impairment which could produce the symptoms Gerhart alleged. Yet, at the second part of the
test, ALJ Shortill did not fully credit Gerhart’s statements regarding the intensity, persistence and
limiting effects of those symptoms. Plaintiff objects to this finding on two primary grounds.
First, she argues that the ALJ did not properly evaluate her pain under the factors set forth in
Social Security Ruling 88-13. Gerhart also maintains that the ALJ gave baseless reasons for
discrediting her testimony regarding the severity of her pain.
ALJ Shortill’s analysis of Plaintiff’s allegations of pain is deficient. The ALJ’s opinion
manifested knowledge of the two-part test used to evaluate a claimant’s subjective statements
about his or her symptoms, but ALJ Shortill did not adhere to the requirements of this test. For
the initial part of the test, the ALJ properly acknowledged that Gerhart’s impairments could
reasonably be expected to cause her alleged symptoms. But, at the second part of the test, ALJ
Shortill neglected to engage in a discussion analyzing the factors enumerated in Felisky and
Social Security Rulings 96-7p and 88-13, to explain how these factors impacted the ALJ’s
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consideration of Plaintiff’s pain. Instead, the ALJ summarily cited a host of reasons purporting
to account for his decision to limit the credit given to Plaintiff’s statements.
ALJ Shortill provided five reasons for discrediting Plaintiff’s testimony: 1) the routine
and/or conservative nature of Plaintiff’s treatment; 2) the fact that Plaintiff “did not always
follow-up on recommendations made by [her] treating doctor”; 3) Gerhart’s lack of compliance
with taking prescribed medication; 4) “significant gaps in her history of treatment”; and 5)
Plaintiff’s “continued use of crack cocaine since her alleged onset date, up to at least April
2008”.

(Tr. 19-20).

Gerhart only directly challenged the second, third and forth reasons

provided by the ALJ.
Gerhart maintains that it was improper for ALJ Shortill to question her credibility based
upon the alleged “gaps” he perceived in her treatment history because the ALJ overlooked a
number of records in her file. While discussing the medical records from the Cleveland Clinic
on page seven of his written decision, ALJ Shortill stated that Gerhart was not seen at the clinic
from June 2007 until June 18, 2008.3 Plaintiff actually presented to the facility three times
within this time period, specifically on September 7, 2007, January 16, 2008, and March 17,
2008. Although the Commissioner concedes that the ALJ’s statement was incorrect, Defendant
argues that the ALJ did consider these records, but mistakenly referred to them as being dated in
2007. For instance, Defendant submits that the ALJ’s discussion of Cleveland Clinic records
from March 2007 actually refer to the Cleveland Clinic records from March 2008. While this
may be true, it is imprudent for the undersigned to speculate about the source of the ALJ’s error.

3

 Plaintiff’s arguments regarding the other documents which she alleges ALJ Shortill overlooked

are addressed later in this Opinion.   
8 

It is certainly possible that the ALJ was not aware of records from the Cleveland Clinic
demonstrating that Plaintiff was treated there between June 2007 and June 2008, as he
specifically stated otherwise in his opinion. While the Commissioner points to other alleged
gaps in Plaintiff’s treatment history, it is impossible for the Court to determine whether the
ALJ’s finding here was supported by the record because the ALJ did not elaborate upon the
particular “gaps” to which he was referring when he decided to discount Gerhart’s credibility
based on this factor. It was within the ALJ’s purview to determine whether the length in time
between Gerhart’s treatment was reasonable under the circumstances, and if not, explain his
basis for deciding such.

But, the ALJ’s misstatement of the record revealed an apparent

oversight the ALJ made in his review of the record. This oversight undermined the ALJ’s
decision to discount Gerhart’s credibility on this basis.
Plaintiff also submits that the ALJ’s second and third stated reasons for discounting her
credibility—failing to follow her doctor’s recommendations and not being compliant with
prescribed medication—are unfounded. Gerhart indicated that she could not comply with her
doctor’s recommended treatment or medication regimen due to financial difficulty. There were
numerous instances of Plaintiff alleging indigence as the cause of her inability to comport with
recommended treatment and medication, many of which instances were noted by ALJ Shortill in
his written opinion. Plaintiff therefore submits that the ALJ’s acknowledgment of her financial
difficulties undercut his decision to discredit her on the basis of failing to conform to her doctor’s
recommendations.

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Although the Court is hesitant to do so, it finds that Plaintiff’s critique of the ALJ’s
decision has some merit.4 The ALJ’s opinion made repeated mention of Plaintiff’s inability to
afford treatment and other forms of medical care as a result of her lack of medical insurance and
financial concerns. Social Security Ruling 96-7p advises ALJs to consider a claimant’s reasons
for failing to seek regular medical treatment. See SSR 96-7p, 1996 WL 374186, at *7-8. Yet,
ALJ Shortill did not explain why he chose to discredit Gerhart’s statements that she could not
afford treatment even after he acknowledged her reported claims of financial hardship.
Under some circumstances, these errors would not necessitate remand on their own. See
Wells v. Astrue, No. 09-78-GFVT, 2009 WL 3789006, at *4, n.2 (E.D.Ky. Nov. 12, 2009)
(“[T]he ALJ[’s] failure to address Wells’ alleged inability to afford treatment amounted to
harmless error because he based his credibility determination on many factors, not merely on
Wells’ lack of medical treatment.”); see also Davis v. Astrue, No. 08-122-GFVT, 2009 WL
2901216, at * 5 (E.D.Ky. Sept. 3, 2009). However, remand is proper in the instant case because

4

While Plaintiff’s argument is technically sound, the Court would be remiss if it did not point out
that there was ample evidence in the record to rebut Plaintiff’s claim that she was unable to
afford medical treatment. During the hearing, Plaintiff admitted to regularly (every couple of
days to once a week) using cocaine for a number of years, from approximately 2003 until six
months prior to the hearing. (Tr. 41-44). Gerhart further admitted to paying $75 roughly every
week for these drugs, even though she stated that her supplier would give her $300-$450 worth
of cocaine each week. (Tr. 43). It appeared that the ALJ doubted the truthfulness of Plaintiff’s
testimony regarding how much money she spent on drugs because he noted that it would be
irrational for someone to give Plaintiff more drugs than that for which she paid. (Tr. 43-44).
Accordingly, it would have been reasonable for ALJ Shortill to disregard Plaintiff’s claim that
she could not afford her medications or recommended treatment given her ability to regularly
spend substantial amounts on illegal drugs. See Rise v. Apfel, 234 F.3d 1269 (6th Cir. 2000)
(Table) (ruling that the ALJ did not commit reversible error by discrediting the claimant’s
statement that she could not afford medications because she was able to afford cigarettes); see
also Sias v. Sec’y of Health & Human Servs., 861 F.2d 475, 480 (6th Cir. 1988) (finding that the
plaintiff’s claim that he could not afford support hose was incredible given that he was able to
afford to smoke two packs of cigarettes a day).
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neither of the two remaining reasons proffered by the ALJ in support of his decision to discredit
Plaintiff is sufficient to uphold the ALJ’s negative assessment of Plaintiff’s credibility.
ALJ Shortill’s reliance upon Plaintiff’s routine and/or conservative treatment is
troublesome because it is subject to the same criticism that plagued the ALJ’s reliance upon
Plaintiff’s failure to follow-up with treatment and to be compliant with taking prescribed
medications. Presumably, if an individual is truly unable to afford “conservative” forms of
treatment, that individual would likely also be unable to afford more aggressive or advanced
forms of treatment. Thus, the ALJ’s failure to address Gerhart’s inability to afford treatment also
weakened his reliance upon this factor. In addition, the Court notes that not all of Plaintiff’s
ailments could have been managed with more aggressive treatment. See Kalmbach v. Comm’r of
Soc. Sec., 409 F. App’x 852, 864 (6th Cir. 2011) (stating that “‘more aggressive’ treatment is not
recommended for fibromyalgia patents”).5
More problematic is the ALJ’s bare reference to Gerhart’s admitted drug use as a factor
to discredit the veracity of her statements. The undersigned is not aware of any binding case law
or regulation which creates a direct correlation between an individual’s status as a drug user and
the truthfulness of the individual’s statements. Rather, many courts have accepted an ALJ’s
decision to discount a claimant’s credibility based upon the inconsistent statements the claimant
made regarding his or her substance abuse. See e.g. Holmes v. Astrue, No. 3:08-CV-2801, 2010
WL 1258080, at *11-12, n.5 (N.D. Ohio Mar. 26, 2010) (Carr, J.) (“[T]he ALJ properly
considered Holmes’s inconsistent statements about his alcohol use in evaluating Holmes’s

5

Plaintiff did not challenge the ALJ’s decision to omit her fibromyalgia as a severe impairment
at step two of the sequential analysis. However, the Court notes that the ALJ’s opinion
acknowledged that Plaintiff was diagnosed with the condition and tested positive on 18 out of the
18 trigger points. (Tr. 18).
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credibility.”); see also Williams v. Astrue, 371 F. App’x 877, 879 (9th Cir. 2010) (ruling that it
was proper for the ALJ to use the claimant’s inconsistent statements regarding his drug and
alcohol use to undermine the claimant’s overall credibility).
But, in the instance case, Plaintiff was truthful at the hearing regarding her drug use. She
admitted that she had used drugs after her alleged onset date. Although it may seem self-evident
that using illegal drugs is somewhat probative of a person’s tendency to be untruthful, the
undersigned is not inclined to embrace such a broad generalization, especially when the
Commissioner has not provided any legal support for such a conclusion. This is not to say that
the ALJ was completely precluded from considering Plaintiff’s history of drug abuse in weighing
her credibility. As the Court alluded in footnote three herein, it may have been proper for ALJ
Shortill to contrast Plaintiff’s statements regarding her inability to afford treatment and
medication with her admissions of being able to afford illegal narcotics. But, the ALJ’s opinion
did not do so and it is not proper for the Court to suppose that this is what the ALJ intended by
citing Plaintiff’s drug use as a reason to discredit her testimony. See McClesky v. Astrue, 606
F.3d 351, 353 (7th Cir. 2010) (finding that the ALJ erred by failing to engage in any discussion
of how Plaintiff’s ability to obtain illegal drugs undermined her claims that she could not afford
prescription drugs).
On remand, the ALJ must reevaluate Gerhart’s allegations of pain in accordance with the
factors set forth in Felisky and Social Security Rulings 96-7p and 88-13. The ALJ’s evaluation
of these factors should be “sufficiently specific” to ensure that Plaintiff and any other subsequent
reviewer can appreciate how much weight the ALJ assigned to Plaintiff’s statements and the
reasons for that weight. Rogers, 486 F.3d at 249. The ALJ’s bare recital of the objective
evidence in the record and Plaintiff’s daily activities does not, without some analysis, explain
12 

why or how this evidence impacted the ALJ’s decision. ALJ Shortill must provide this analysis
on remand. On the other hand, to the extent that Plaintiff objected to the ALJ’s decision due to
the ALJ’s omission of any discussion regarding the statements Plaintiff made to her doctors
about the severity of her pain, there is no authority for Plaintiff’s contention that ALJ Shortill
was required to separately analyze these statements. Accordingly, this apparent failure does not
constitute error.
2. ALJ’s Discussion of the Evidence of Record
Plaintiff also submits that the ALJ’s review of the record was insufficient because the
ALJ’s discussion of the medical evidence failed to acknowledge several records in Plaintiff’s
medical files. For instance, Plaintiff points to a host of records between February 2006 and
January 2007 which she argues ALJ Shortill failed to consider. Gerhart maintains that the ALJ’s
failure to reference these records in his recital of the evidence indicates that he failed to consider
this evidence.
The Court rejects Plaintiff’s contention that the ALJ’s omission of these specific records,
dated between February 2006 and January 2007, signifies that the ALJ did not consider such
evidence. As the Commissioner noted, an ALJ is not required to recite every piece of evidence
in the record, “so long as [the ALJ] consider[s] the evidence as a whole and reach[es] a reasoned
conclusion.” Boseley v. Comm’r of Soc. Sec., 397 F. App’x 195, 199 (6th Cir. 2010) (citing
Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 507-08 (6th Cir. 2006)).

Furthermore, “an

ALJ’s failure to cite specific evidence does not indicate that it was not considered.” Daniels v.
Comm’r of Soc. Sec., 152 F. App’x 485, 489 (6th Cir. 2005) (citing Simons v. Barnhart, 114 F.
App’x 727, 733 (6th Cir. 2004)). Accordingly, ALJ Shortill’s failure to refer to the records
identified by Plaintiff (specifically those created between February 2006 and January 2007), does
13 

not denote that he did not consider this evidence. Regardless, given the ALJ’s prior error in
reviewing the records from the Cleveland Clinic, remand will give the ALJ a second opportunity
to review these records.
3. Severe Impairment
The Court also rejects Plaintiff’s argument that the ALJ’s failure to name Plaintiff’s
arthritic hand condition as a severe impairment was erroneous. The second step of the sequential
analysis is used as a screening tool to allow ALJs to dismiss “totally groundless” claims from a
medical standpoint at an early stage in the review process. Higgs v. Bowen, 880 F.2d 860, 863
(6th Cir. 1988). Although this step of the analysis is judged under a de minimis standard, Salmi
v. Sec’y of Health & Human Servs., 774 F.2d 685, 690-92 (6th Cir. 1985), not all medical
conditions will be deemed severe. Notwithstanding, even when an ALJ errs by failing to list one
of the claimant’s impairments as severe, such an error will not always require remand. 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
during the latter steps in 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).
In the case sub judice, ALJ Shortill determined that Gerhart suffered from four different
severe impairments. Such a finding compelled the ALJ to proceed with evaluating Plaintiff’s
severe and non-severe impairments through the remaining steps in the sequential analysis. By
Plaintiff’s own admission, she acknowledges that ALJ Shortill accounted for her arthritic hand
condition in his RFC finding even though he did not conclude that this malady constituted as
severe. Accordingly, regardless of whether the ALJ should have labeled this condition as severe
14 

at step two, the ALJ’s consideration and inclusion of this impairment in his RFC finding
rendered any such error irrelevant.

See Maziarz, 837 F.2d at 244. Nevertheless, because

remand is proper on other grounds, it would pose no additional burden on the ALJ to expressly
address whether Plaintiff’s hand condition constitutes as a severe impairment at step two of the
sequential 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 back to the Social Security
Administration.
IT IS SO ORDERED.

s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge
Date: March 29, 2012.

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