Lewis v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order: The Commissioner's decision is AFFIRMED. Magistrate Judge Kathleen B. Burke on 9/26/2018. (D,I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICKY STEVEN LEWIS,
Plaintiff,
v.

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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CASE NO. 5:17-CV-2438

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Ricky Steven Lewis (“Lewis”) seeks judicial review of the final decision of
Defendant Commissioner of Social Security (“Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the
parties. Doc. 15.
For the reasons set forth below, the Commissioner’s decision is AFFIRMED.
I. Procedural History
Lewis filed his application for DIB in October 2014, alleging a disability onset date of
April 5, 2014. Tr. 178. He alleged disability based on the following: prostate cancer, stage 1;
type 2 diabetes; osteoarthritis; hyperthyroidism; hypertension; lymphadenopathy; and back pain.
Tr. 241. After denials by the state agency initially (Tr. 88) and on reconsideration (Tr. 102),
Lewis requested an administrative hearing (Tr. 120). A hearing was held before Administrative
Law Judge (“ALJ”) Susan Smoot on August 16, 2016. Tr. 28-74. In her September 8, 2016,
decision (Tr. 13-22), the ALJ determined that there are jobs that exist in significant numbers in
the national economy that Lewis can perform, i.e. he is not disabled. Tr. 21. Lewis requested

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review of the ALJ’s decision by the Appeals Council (Tr. 177) and, on September 18, 2017, the
Appeals Council denied review, making the ALJ’s decision the final decision of the
Commissioner. Tr. 1-3.
II. Evidence
A. Personal and Vocational Evidence
Lewis was born in 1953 and was 61 years old on the date his application was filed. Tr.
178. He graduated from high school and has about a year of college studying accounting and
computer programming. Tr. 35. He served in the Air Force for seven years, where he was
trained as a law enforcement specialist and an air traffic controller. Tr. 36. He more recently
worked as a taxi dispatcher, delivery driver, and Uber driver. Tr. 37-44.
B. Relevant Medical Evidence1
On November 26, 2013, Lewis saw Emile Mehanna, M.D., for an endocrinology
consultation after he had been found to have a thyroid nodule on his neck. Tr. 644-647. Lewis
denied palpitations, increased sweating or cold intolerance. Tr. 645. He stated that he “has some
work related anxiety/paranoia which is not affecting his functionality” and that he was aware of
available resources at the Veterans Affairs (“VA”) system and would seek help if he needed it.
Tr. 645. He reported weight gain which he attributed to the fact that he had stopped smoking in
2012 and had been eating more. Tr. 645. Further work-ups were planned. Tr. 647.
On December 17, 2013, thyroid imaging with uptake demonstrated borderline high 24hour thyroid uptake with intense increased radiotracer focus in the right lobe with suppression of
radiotracer activity in the rest of the right lobe and entire left lobe, which likely represented

1

Lewis only challenges the ALJ’s finding regarding his mental impairments and his hypothyroidism. Accordingly,
only the medical evidence relating to those impairments are summarized and discussed herein.

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hyperthyroidism secondary to a toxic nodule. Tr. 566-567. Iodine-131 therapy was
recommended. Tr. 567.
On January 27, 2014, radiologist Ronnie Derrwaldt orally administered Iodine 131
therapy, a radiopharmaceutical, for hyperthyroidism. Tr. 557-558.
On February 10, 2014, Lewis saw Mandeep Saran, N.P., for follow-up for his chronic
health conditions (prostate cancer, benign thyroid nodule status post I-131 therapy, diabetes,
hypertension). Tr. 807-814. He reported “doing generally well.” Tr. 810. Upon exam, Lewis’
thyroid was smooth. Tr. 812. He reported forgetfulness but scored a 29/30 on a mini-mental
status examination; Saran described his forgetfulness as “stable.” Tr. 813. Lewis denied fatigue
and mood changes. Tr. 811.
On May 25, Lewis sought care for left sided low-back pain. Tr. 341. He denied
depression and anxiety and had a normal affect. Tr. 341-342.
On June 16, 2014, Lewis returned to Mandeep Saran for a follow-up visit and complained
of left flank pain. Tr. 726-733. He denied fatigue and mood changes. Tr. 731. Upon exam, his
thyroid was smooth. Tr. 731. A laboratory panel showed that Lewis now had hypothyroidism,
and Saran prescribed levothyroxine. Tr. 732. Lewis again scored 29/30 on a mini-mental status
examination and Saran commented, “no worsening at this time.” Tr. 730.
Over the next few months, Lewis continued taking levothyroxine and underwent
laboratory panels to monitor medication efficacy and compliance. Tr. 734-736.
On August 7, 2014, Lewis saw oncologist Adir Luden, M.D. Tr. 508. He stated that he
had been feeling well. Tr. 508. Dr. Luden commented that Lewis was clinically and
biochemically stable and that he had recovered nicely from the acute side effects of radiotherapy

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for prostate cancer, which, in his case, were minimal. Tr. 508. Dr. Luden released him from
care. Tr. 508.
On October 27, 2014, Lewis saw Mandeep Saran for a follow-up on his chronic medical
conditions and ongoing back pain. Tr. 487-493. Lewis complained of weight gain and fatigue,
but Saran noted that Lewis had not been compliant with follow-up orders. Tr. 490. He denied
mood changes. Tr. 491. Upon exam, his thyroid was smooth. Tr. 491. He had an elevated TSH
level; Saran noted that he had recently had his levothyroxine dosage increased and referred him
to endocrinology. Tr. 493. Lewis reported forgetfulness, but scored 29/30 on a mini-mental
status examination. Tr. 493.
On December 8, 2014, Lewis saw nurse practitioner Augusta Boyd in endocrinology for
a follow-up appointment for management of his hypothyroidism. Tr. 482-484. Lewis reported
fatigue. Tr. 482. His weight was stable. Tr. 482. He was advised to undergo another ultrasound
and to return in one year unless he experienced a change in the size of thyroid nodules. Tr. 484.
On March 5, 2015, endocrinology advised that Lewis continue his medication at its current
dosage and seek a thyroid ultrasound in one year. Tr. 1160.
On April 15, 2015, an ultrasound showed a dominant nodule in the lower pole of the right
upper lobe of Lewis’ thyroid gland. Tr. 1955-1956.
On May 11, Lewis saw Mandeep Saran for follow-up for his chronic health conditions.
Tr. 465-470. He reported forgetfulness and fatigue and denied unintended weight gain or mood
changes. Tr. 468, 469. A biopsy of his thyroid gland was benign. Tr. 468. Upon exam, his
thyroid was smooth and Saran kept his levothyroxine at the same dosage level. Tr. 469. Saran
cited a 29/30 score on a mini-mental-status examination and stated that Lewis’ forgetfulness was
stable. Tr. 469.

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On July 22, 2015, Lewis returned to Saran and reported feeling fatigued/tired and having
low energy levels due to hypothyroidism, for which he took levothyroxine every morning. Tr.
457, 459, 460. Saran increased his levothyroxine dosage. Tr. 461.
On September 3, Lewis saw Saran for follow-up. Tr. 454. He reported that he was
taking his levothyroxine every morning and had less fatigue. Tr. 454. He complained that his
memory and concentration were getting worse and he was experiencing a lot of stress. Tr. 454.
Upon exam, he had a normal affect. Tr. 455. Saran wrote that “memory loss/low attention span”
was most likely secondary due to stress. Tr. 456. He offered a mental health evaluation but
Lewis “refused.” Tr. 456. Saran ordered a laboratory panel. Tr. 456.
On February 17, 2016, Lewis saw Saran for follow-up and reported no change in his
energy level: it was low and he felt tired. Tr. 1873, 1874. He again reported stress and memory
issues and Saran again suggested his memory issues were related to stress. Tr. 1877. Saran
offered a mental-health referral “but he refuses seeing someone outside.” Tr. 1877.
On March 15, 2016, an ultrasound of Lewis’ right-side thyroid nodule showed no
adenopathy and decreased size. Tr. 1847-1848. He was advised to seek a repeat ultrasound in
one year. Tr. 1908.
C. Medical Opinion Evidence
1. VA examiners
On April 7, 2014, a compensation and pension examination was performed by VA
physician assistant John Birdsell. Tr. 768-774. Birdsell reviewed Lewis’ medical records
associated with his diagnosis of prostate cancer and conducted a telephonic interview with him.
Tr. 769-770. Birdsell’s exam notes listed an active diagnosis of prostate cancer that was service
connected; that Lewis was currently undergoing radiation treatment; he experienced some

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fatigue with treatments; and he had a past medical history that included depression (2007) and
PTSD (1999). Tr. 770-771, 774.
On November 30, 2015, Lewis saw VA psychologist Priscilla Kingston, Ph.D., for an
evaluation of his mental disorders. Tr. 1911-1915. Dr. Kingston noted that Lewis currently had
generalized anxiety disorder characterized by “vague [symptoms] of anxiety while driving (fear
of getting lost, having an accident) and of the future as he no longer works (finances).” Tr. 1911.
He also complained of forgetfulness “generally” but Dr. Kingston noted that a recent minimental-status examination showed a score of 30/30, i.e., “no evidence of this.” Tr. 1911-1912.
Upon exam, Lewis was slightly anxious and had a constricted affect. Tr. 1914. Dr. Kingston
wrote that she was the examiner on his previous review, in 2012, and that at that time she had
assessed his symptoms as mild and that he no longer met the criteria for PTSD. Tr. 1914. She
was therefore “unsure” why he had been raised from a 50% to 70% service connected disability
for generalized anxiety disorder because his symptoms at the current visit “appear to be even
better than in 2012.” Tr. 1914. She explained that in 2012 his PTSD had been exacerbated by
his mother’s death in 2011 and that he no longer had this stress. Tr. 1014. He had not been seen
in the mental health department since May 2012 and he no longer took psychiatric medications.
Tr. 1914-1915. He is able to work part time and he stated that he no longer feels depressed. Tr.
1914-1915. Dr. Kingston also commented that, in 2012, Lewis reported flashbacks 2-3 times a
week, which he did not report at his current visit. Tr. 1915. She recommended decreasing his
rating to 50%. Tr. 1915. She assessed Lewis’ symptoms as mild or transient and stated that
there was no indication that his symptoms were severe enough to prevent him from working. Tr.
1912, 1915.
2. Consultative Examiner

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On January 7, 2015, Lewis saw clinical neuropsychologist Joshua Magleby, Ph.D., for a
consultative examination. Tr. 541-548. Lewis reported physical problems as the reason he was
unable to work (arthritis, prostate cancer treatment) and that he felt like his memory was not as
good as it had been. Tr. 543. He reported a past history of PTSD and generalized anxiety in the
1990s, but neither was active at this time. Tr. 543. He was not in treatment and he was able to
handle his flashbacks mostly on his own, learning to “look through” them. Tr. 543. He stated
that he avoids crowds, although he can be around people at church because it is a low-stress
environment. Tr. 543. When driving down the street he would occasionally forget where he was
going and he had recurrent and intrusive thoughts. Tr. 543. He described his mood as “easy
going” and “jovial” most of the time, although he would sometimes “blow my stack” when
driving a car. Tr. 543. He denied depression and becoming violent. Tr. 543, 545. He reported
no limitations in his activities of daily living. Tr. 544. Upon exam, he was generally appropriate
and composed for the situation, he had linear thoughts, normal speech, and a good ability to
understand simple verbal and complex directions. Tr. 545. His affect was normal and he had a
stable mood and normal psychomotor activity. Tr. 545. He showed no signs of anxiety and
reported no PTSD impairments. Tr. 545. He had a fair memory (auditory recall 1/3), fair insight
and judgment, average processing speed, and average intelligence. Tr. 546. Dr. Magleby
diagnosed unspecified trauma and stressor-related disorder and unspecified neurocognitive
disorder. Tr. 546. He opined that Lewis had an average ability to perform work-related mental
tasks, and he was somewhat impaired in his ability to withstand mental stress and pressures
associated with day to day work activities, “comprised by PTSD and short-term recall
problems.” Tr. 547.
3. State Agency Reviewers

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On December 2, 2014, state agency reviewing physician Leon D. Hughes, M.D.,
reviewed Lewis’ record and opined that his hypothyroidism was being treated and was under
control. Tr. 85. On March 10, 2015, state agency reviewing physician Paul Morton, M.D.,
reviewed Lewis’ record and agreed with Dr. Hughes’ opinion. Tr. 99.
On January 21, 2015, state agency reviewing psychologist Cynthia Waggoner, Psy.D,
reviewed Lewis’ record and rated the severity of his mental impairments. Tr. 80-82. Dr.
Waggoner listed a medically determinable severe impairment of an anxiety disorder (Tr. 81),
commented that he had a history of PTSD and depression, but found that his affective conditions
did not appear to be currently medically determinable impairments. Tr. 82. She explained that
Lewis did not have any current psychological treatment and mental-status examinations,
including memory functioning, were normal, and his activities of daily living were not
significantly limited. Tr. 82. She concluded that Lewis’ mental conditions were non-severe. Tr.
82. On March 16, 2015, state agency reviewing psychologist Carl Tishler, Ph.D., reviewed
Lewis’ record and adopted Dr. Waggoner’s opinion. Tr. 95-96.
D. Testimonial Evidence
1. Lewis’ Testimony
Lewis was represented by counsel and testified at the administrative hearing. Tr. 30. He
is single and lives in a condominium. Tr. 33. His adult son was temporarily living with him. Tr.
33-34. He has a 90% disability rating from the VA based on PTSD and diabetes and receives
compensation. Tr. 34. He has a driver’s license and recently was a driver for Uber. Tr. 34-35.
He is limited in his ability to drive because of his attention span; sometimes he takes a wrong
turn or forgets where he is going. Tr. 35. He was almost in an accident a couple of times and he
is driving under a lot of stress. Tr. 35. He started driving for Uber in June 2015 and averaged

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two or three hours a day. Tr. 38. Most of his Uber driving was local and he stopped performing
this work in March 2016. Tr. 38. He stopped working because of the toll on his back, the stress,
he got a complaint about almost being in an accident, and not putting in enough hours. Tr. 38.
Prior to driving for Uber, Lewis worked as a supervisor dispatcher for a taxi service. Tr.
39, 57-58. He was working full time performing that job in 2013 and stopped when he was
diagnosed with prostate cancer and had to go to a lot of appointments. Tr. 41. He had treatments
every day for 45 days. Tr. 41-42. He would get off work at 6:30 a.m. and had to be in Cleveland
by 9:00 a.m. for treatments and it was taking its toll; he was sleeping past the time and he was
fatigued from the radiation. Tr. 41. He did not return to that job after his treatments because he
had been replaced and it was no longer available. Tr. 42. He also worked as a taxi dispatcher in
2003 in Florida but he had to stop doing that work because there was a lot of stress and he started
experiencing more PTSD symptoms. Tr. 43-44.
When asked what prevents him from working, Lewis stated that he has been having a lot
of medical appointments and added stress since his prostate cancer has returned. Tr. 47. His
thyroid problem causes low energy and a bad attention span. Tr. 47. He also has pain in his
back and hips. Tr. 47. The ALJ confirmed that Lewis had 45 days of radiation treatment
beginning in 2014 and it was thought to have been in remission and Lewis agreed. Tr. 47-48.
Lewis explained that he was no longer receiving treatment after that 45-day period but they were
monitoring his PSA levels. Tr. 48. Doctors had offered him hormone and surgery to treat his
prostate cancer but Lewis elected not to undergo those treatments and to have radiation
treatments instead. Tr. 48. He had side effects from the radiation, mostly fatigue. Tr. 48. He
started to feel somewhat better after his radiation treatments ended, but with his thyroid issue he
still had fatigue, although it was not as profound as before. Tr. 49. Meanwhile, in June 2016 his

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doctors had discovered that his cancer had come out of remission. Tr. 49. They recommended
treatment but it would not have been very successful, so Lewis elected to wait until some better
treatment came along. Tr. 49. Currently, it is in the early stages and he is still going to be
treated for it; he would be discussing treatment with his doctor soon. Tr. 49.
The ALJ asked Lewis about his thyroid problem. Tr. 49. Lewis explained that this came
about a few years ago when he was coming out of his cancer treatment. Tr. 50. He was
diagnosed with a nodule on his thyroid; the doctors destroyed the nodule, but this made it
difficult on his thyroid. Tr. 50. This causes fatigue, weight gain, and feeling like he is out of
breath sometimes when he walks up stairs. Tr. 50. He is taking medication, which helps
somewhat, but he still has fatigue. Tr. 50.
Lewis described his mental problems: sometimes he has a short attention span and
memory. Tr. 50-51. He still has some stress and his prostate cancer returning has caused more
stress as has dealing with a lot of appointments. Tr. 51. His attention problems started about a
year prior to the hearing when he started going back to work after experiencing more stress after
his mother died and dealing with her estate and he could not remember a lot of things sometimes.
Tr. 51. He is also being treated for anxiety but he is not on any medication. Tr. 51. He had been
on medication a “long time ago”—several years. Tr. 52. He stopped taking medication because
he had “bad reactions.” Tr. 52. He has gotten counseling for mental health issues for about three
years, but not through the VA. Tr. 52. He finds the counseling helpful. Tr. 52. He also has
PTSD and has flashbacks from the war. Tr. 61. Going to church helps. Tr. 61. He sometimes
has flashbacks daily but he has learned to look through them. Tr. 61. He sometimes has
problems being around crowds of people. Tr. 62. When he goes to church he tries to sit “a little
bit away.” Tr. 62. He sometimes has problems sleeping; on a typical night he gets about 5 or 6

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hours and sometimes gets 8 if he doesn’t have anything to do. Tr. 62. He has to wake up a lot to
urinate because of his prostate cancer. Tr. 62. He sometimes remembers to take his medication
on his own, although he may forget to see his medication divider box. Tr. 64. His son checks to
make sure he took his medication. Tr. 64. Lewis also has to make a list before he goes to the
grocery store and has in the past forgotten to send in a payment when managing his banking. Tr.
64-65. On a day when his stress, PTSD, and anxieties are worse, he usually tries to leave the
house and go somewhere, such as visiting his grandchildren. Tr. 65-66. He has bad days about
three times a week since his son has gotten sick, and, before his son got sick, about once a week.
Tr. 66.
Lewis described a typical day: he wakes up and reads and studies the bible. Tr. 53. He
follows a home study course through his church. Tr. 53. It takes him awhile because his
attention span isn’t that great. Tr. 56. He usually will have his breakfast and try to do something
around the house that needs to be done, like minor chores such as washing clothes, loading the
dishwasher, and wiping off the counter. Tr. 53. He does not have to take care of the grounds
around his condo, just the inside and his patio. Tr. 54. His son also helps him with things. Tr.
54. Bending over his hard for him; for example, he tried to sweep his patio the other day but
only lasted about a half an hour before having to come back inside. Tr. 55. It is not a big patio
but there are a lot of weeds that grow up around it and he was bending over and pulling them out
and this hurt his back. Tr. 55. He also has a hard time getting up after bending down low doing
something like changing the cat litter. Tr. 55. Once in a while he will go to church on Sundays,
if he feels like it. Tr. 56. He is able to buy groceries, pay bills, and go to his grandchildren’s
sporting events. Tr. 57.
2. Vocational Expert’s Testimony

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Vocational Expert (“VE”) Mark Pinti testified at the hearing. Tr. 67-73. The ALJ
discussed with the VE Lewis’ past relevant work. Tr. 68. The ALJ asked the VE to determine
whether a hypothetical individual with Lewis’ age, education and work experience could
perform his past relevant work or any other work if the individual had the following
characteristics: can perform light work; can frequently climb stairs but never ladders, ropes or
scaffolds; can frequently stoop, kneel, crouch and crawl; and must avoid exposure to moving
mechanical parts and unprotected heights and commercial driving. Tr. 69. The VE answered
that such an individual could perform Lewis’ past work as a dispatcher and could also perform
work as a housekeeper cleaner (50,000 national jobs); laundry or garment folder (50,000 national
jobs); and ticket seller (100,000 national jobs). Tr. 69-71. The ALJ asked the VE if such an
individual could still perform Lewis’ past work if the individual was limited to sedentary work
and the VE answered that such an individual could. Tr. 71-72. The ALJ asked the VE how
much time an individual could be off-task or absent and still remain competitively employable
and the VE answered no more than 15% (or more than one hour in an 8-hour workday) of offtask time and no more than one day of absences per month. Tr. 72.
Lewis’ attorney asked the VE whether his answer to the ALJ’s first two hypotheticals
would change if the individual was limited to simple, routine, repetitive tasks, few changes in a
routine setting, and no fast-paced production requirements. Tr. 73. The VE stated that such a
change would rule out all past relevant work. Tr. 73.
III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which

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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.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy . . . .
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.

If claimant is doing substantial gainful activity, he is not disabled.

2.

If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.

3.

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

4.

If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if
claimant’s impairment prevents him from doing past relevant work. If
claimant’s impairment does not prevent him from doing his past relevant
work, he is not disabled.

5.

If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.

20 C.F.R. §§ 404.1520, 416.920;2 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.

2

The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20

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Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the vocational factors to
perform work available in the national economy. Id.
IV. The ALJ’s Decision
In her September 8, 2016, decision, the ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through
June 30, 2017. Tr. 15.
2. The claimant has not engaged in substantial gainful activity since April 5, 2014, the
alleged onset date. Tr. 15.
3. The claimant has the following severe impairments: osteoarthritis, prostate cancer status
post-radiation therapy–recurrent, and lumbar degenerative disc disease. Tr. 15.
4. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1. Tr. 17.
5. The claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) except he can frequently climb ramps or stairs. He can never climb
ladders, ropes, or scaffolds. The claimant can frequently stoop, kneel, crouch, and
crawl. He must avoid exposure to moving mechanical parts, unprotected heights, and
commercial driving. Tr. 18.
6. The claimant is capable of performing past relevant work as a taxi dispatcher. This
work does not require the performance of work-related activities precluded by the
claimant’s residual functional capacity. Tr. 21.
7. The claimant has not been under a disability, as defined in the Social Security Act, from
April 5, 2014, through the date of this decision. Tr. 21.
V. Plaintiff’s Arguments
Lewis argues that the ALJ erred at step two when she did not find his mental health
impairments and hypothyroidism to be severe impairments and erred at step four because she

C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).

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relied on an inaccurate hypothetical in determining that Lewis could perform his past work.
Doc. 18, pp. 1, 15-22.
VI. Legal Standard
A reviewing 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. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “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) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989) (per curiam) (citations omitted)). A court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
VII. Analysis
A. The ALJ did not err at step two
At step two, a claimant must show that he suffers from a severe medically determinable
physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is not considered
severe when it does not significantly limit the claimant’s physical or mental ability to do basic
work activities (without considering the claimant’s age, education, or work experience). Long v.
Apfel, 1 Fed. App’x 326, 331-332 (6th Cir. 2001); 20 C.F.R § 404.1521(c). 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

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supervision, co-workers, and usual work situations;’ and (6) ‘[d]ealing with change in a routine
work setting.’” Simpson v. Comm’r Soc. Sec., 344 Fed. App’x 181, 190 (6th Cir. 2009) (quoting
20 C.F.R. §§ 404.1521(a)-(b) and 416.921(a)-(b)).
In Higgs v. Bowen, the Sixth Circuit found that “an impairment can be considered not
severe only if it is a slight abnormality that minimally affects work ability regardless of age,
education, and experience.” 880 F.2d 860, 862 (6th Cir. 1988). The Higgs court observed that
“this lenient interpretation of the severity requirement in part represents the courts’ response to
the Secretary’s questionable practice in the early 1980s of using the step two regulation to deny
meritorious claims without proper vocational analysis.” Id. But the court also recognized that
“Congress has approved the threshold dismissal of claims obviously lacking medical merit . . . .”
Id. That is, “the severity requirement may still be employed as an administrative convenience to
screen out claims that are ‘totally groundless’ solely from a medical standpoint.” Id. at 863. The
Higgs court approved of that practice and affirmed dismissal because the record contained no
objective medical evidence to support the plaintiff’s claims of severe impairment. Particularly
relevant to the case at bar, the Higgs court observed, “[t]he mere diagnosis of [an ailment], of
course, says nothing about the severity of the condition.” Id.
Since Higgs, the Sixth Circuit has regularly found substantial evidence to support a
finding of no severe impairment if the medical evidence contains no information regarding
physical limitations or the intensity, frequency, and duration of pain associated with a condition.
See, e.g., Long, 1 Fed. App’x at 332; compare Maloney v. Apfel, 211 F.3d 1269 (table),
2000 WL 420700 at *2, (6th Cir. 2000) (per curiam) (finding substantial evidence to support
denial when record indicated claimant showed symptoms and was diagnosed with disorder but
did not contain evidence of a disabling impairment that would prevent work); and Foster v. Sec’y

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of Health & Human Servs., 899 F.2d 1221 (table), 1990 WL 41835 at *2 (6th Cir. 1990) (per
curiam) (finding substantial evidence to support denial when the claimant produced no evidence
regarding the frequency, intensity, and duration of arthritic pain; the record indicated that he was
no more than slightly or minimally impaired); with Burton v. Apfel, 208 F.3d 212 (table), 2000
WL 125853 at *3 (6th Cir. 2000) (reversing finding of no severe impairment because record
contained diagnoses and remarks from a number of treating physicians and psychologists to the
effect that claimant was “‘unable to work ... due to the complexity of her health problems’”
(quoting physician)); and Childrey v. Chater, 91 F.3d143 (table), 1996 WL 420265 at *2 (6th
Cir. 1996) (per curiam) (reversing finding of no severe impairment because record contained an
assessment by a consulting physician reflecting a variety of mental problems that left her “‘not
yet able to really care for herself alone,’” reports of two other physicians corroborating this,
consistent testimony from the claimant, and no medical evidence to the contrary (quoting
physician)).
Regarding his mental impairments, Lewis states that has been diagnosed with PTSD,
depression, generalized anxiety disorder, and an unspecified neurocognitive disorder. Doc. 18,
p. 17. He asserts that he has complained of issues related to these impairments “[o]ver the years”
and that Dr. Magleby, the consultative examiner, opined that Lewis’ memory was somewhat
impaired as was his ability to withstand the pressures associated with day-to-day work activity.
Doc. 18, p. 17.
The ALJ explained that Lewis’ mental impairments, considered singly and in
combination, do not cause more than minimal limitations in Lewis’ ability to perform basic
mental work activities and are, therefore, not severe. Tr. 16. The ALJ found that Lewis had
mild limitations in the three functional areas (activities of daily living, social functioning,

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concentration, persistence or pace) and no episodes of decompensation. Tr. 16. She gave great
weight to the state agency reviewers’ opinion that he has no more than mild limitations,
commenting that Lewis displayed largely modest mental symptoms and had logical thoughts and
cooperative behavior at exams. Tr. 16. She discussed Dr. Magleby’s exam and opinion and
observed that Dr. Magleby did not describe the degree to which he found Lewis to be impaired,
commenting that Dr. Magleby’s exam findings were generally unremarkable and that Lewis had
few ongoing substantial symptoms, suggestive of only mild limitations. Tr. 16-17. The ALJ
gave great weight to Dr. Kingston’s opinion that Lewis had no significant mental symptoms that
prevented him from working. Tr. 17.
Lewis does not identify treatment notes during the relevant period indicating that he had
regularly complained of and was assessed with any ongoing mental impairments other than
forgetfulness. Although the ALJ did not find Lewis to have any severe mental impairments at
step two, the ALJ considered Lewis’ mental impairments when assessing Lewis’ RFC:
As for the claimant’s mental limitations, he asserted that he had ongoing depression and
anxiety, with poor memory and attention. However, the treatment notes show only
occasional mental health complaints with little ongoing treatment. Moreover, he
exhibited largely normal mental functioning at exams.
Tr. 21. Elsewhere in her decision, the ALJ remarked that Lewis had complained of forgetfulness
to Mandeep Saran (whom he saw regularly) and observed that Lewis did not have mental status
abnormalities upon exam. Tr. 19. She commented that, when Lewis later complained to Saran
that his forgetfulness was worsening, Lewis, twice, refused an evaluation offered by Saran. Tr.
19. In sum, the ALJ considered Lewis’ mental impairments and found them to be not severe.
Moreover, the ALJ expressly considered Lewis’ mental impairments when assessing his RFC, so
the ALJ’s failure to classify Lewis’ mental impairment as “severe” at step two is not reversible
error. See Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (the

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failure to find an impairment severe at step two is not reversible error when the ALJ continues
through the remaining steps of the evaluation and can consider non-severe impairments when
assessing an RFC); Fisk v. Astrue, 253 Fed. App’x 580, 583-584 (6th Cir. 2007) (“When an ALJ
determines that one or more impairments is severe, the ALJ must consider limitations and
restrictions imposed by all of an individual's impairments, even those that are not severe ... an
ALJ’s failure to find additional severe impairments at step two does not constitute reversible
error,” quoting Soc. Sec. Rul. 96–8p, 1996 WL 374184, at *5; Maziarz, 837 F.2d at 244); Nejat
v. Comm’r of Soc. Sec., 359 Fed. App’x 574, 577 (6th Cir. 2009); Kirkland v. Comm’r of Soc.
Sec., 528 Fed. App’x 425, 427 (6th Cir. 2013).
Lewis concedes that the failure of an ALJ to find an impairment severe at step two is not
reversible error when the ALJ considers all impairments in the remaining steps. Doc. 20, p. 4.
He argues that case law requires an ALJ “to take the additional impairments into consideration
when formulating a claimant’s RFC” and that the ALJ in his case did not. Doc. 20, p. 4. As
proof that the ALJ did not consider Lewis’ non-severe impairments, Lewis points out that the
ALJ did not include mental health limitations in her RFC assessment. Id. But the case law does
not require an ALJ to include limitations for non-severe impairments; the case law requires the
ALJ to consider the claimant’s non-severe impairments. See, e.g., Nejat, 359 Fed. App’x at 577
(citing Maziarz, 837 F.2d at 244). Here, the ALJ considered Lewis’ non-severe impairments in
formulating her RFC assessment.
The ALJ found Lewis’ hypothyroidism to be non-severe at step two and considered his
hypothyroidism and fatigue when explaining her RFC assessment. Tr. 15, 19. Notably, no
physician assessed any limitations due to hypothyroidism or fatigue. Moreover, Lewis does not
identify how his fatigue limited him and what further limitation he believes should have been

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included in his RFC. The ALJ found that Lewis was more restricted than one of the state agency
reviewing physician’s opinions (limiting him to medium work) and assessed an RFC limiting
him to light work. Tr. 20. In sum, the ALJ did not commit reversible error, and her decision is
affirmed. Maziarz, 837 F.2d at 244.
B. The ALJ did not err at step four
Lewis argues that the ALJ erred at step four because she did not properly evaluate the
cumulative effects of Lewis’ impairments. Doc. 18, p. 21. He argues that, had the ALJ adopted
the limitations that Lewis’ attorney posited in a hypothetical to the VE, the ALJ would have been
required to find Lewis disabled. Doc. 18, p. 22. But the ALJ did not adopt the limitations that
Lewis’ attorney posited to the ALJ at the hearing. Moreover, as described above, the ALJ
considered the cumulative effects of Lewis’ impairments, severe and non-severe. She accurately
stated that Lewis’ treatment notes showed only occasional mental health complaints, he had
largely normal mental functioning up examinations, and he had little ongoing treatment. Tr. 21.
Because substantial evidence supports the ALJ’s decision, the decision is affirmed. See Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (the Commissioner’s decision is upheld
so long as substantial evidence supports the ALJ’s conclusion).
VIII. Conclusion
For the reasons set forth herein, the Commissioner’s decision is AFFIRMED.

IT IS SO ORDERED.

/s/ Kathleen B. Burke
____________________________________
Kathleen B. Burke
United States Magistrate Judge

Dated: September 26, 2018

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