Duncan v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Amy R. Duncan. IT IS RECOMMENDED THAT Defendant's decision be found to be SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED, and that this case be CLOSED. Objections to R&R due by 2/28/2018. Signed by Magistrate Judge Stephanie K. Bowman on 2/14/2018. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AMY DUNCAN,

Case No. 1:16-cv-1003

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Amy Duncan filed this Social Security appeal in order to challenge the
Defendant’s findings that she is not disabled. See 42 U.S.C. §405(g). Proceeding
through counsel, Plaintiff presents four claims of error, all of which the Defendant
disputes. For the reasons explained below, I conclude that the ALJ’s finding of nondisability should be AFFIRMED, because it is supported by substantial evidence in the
administrative record.
I.

Summary of Administrative Record

In May 15, 2013, Plaintiff filed an application for Supplemental Security Income
alleging a disability onset date of March 20, 2013, due to mental and physical
impairments. (Tr. 156, 238). After Plaintiff’s claims were denied initially and upon
reconsideration, she requested a hearing de novo before an Administrative Law Judge.
(“ALJ”). On July 23, 2015, ALJ Kevin Deatherage held an evidentiary hearing at which
Plaintiff appeared with counsel. The ALJ heard testimony from Plaintiff and an impartial
vocational expert. On November 3, 2015, the ALJ denied Plaintiff’s application in a

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written decision. (Tr. 32-41). Plaintiff now seeks judicial review of the denial of her
application for benefits.
Plaintiff was born March 28, 1973 and was 40 years old at the time of her
application. (Tr. 41) She completed high school and was enrolled in special education
classes beginning in second grade.

She has no past relevant work.

She alleges

disability due to her mental impairments; namely, bipolar disorder, depression, affective
disorder and borderline intellectual functioning.
Based upon the record and testimony presented at the hearing, the ALJ found
that Plaintiff had the following severe impairments: “chronic obstructive pulmonary
disease (COPD), asthma, diabetes, obesity, depression, and affective disorder.” (Tr.
34). The ALJ concluded that none of Plaintiff’s impairments alone or in combination met
or medically equaled a listed impairment in 20 C.F.R. Part 404, Subp. P, Appendix 1.
The ALJ determined that Plaintiff retains the following residual functional capacity
(“RFC”) to perform light work with the following limitations:

She can never climb ladders, ropes, or scaffolds, and can only
occasionally climb ramps or stairs. She should avoid exposure to hazards
such as heights or machinery with moving parts, and she should avoid
concentrated exposure to dusts, fumes, gases, odors, extreme cold or
heat, poorly ventilated areas, or humidity. She cannot do production rate
pace work. She can tolerate only occasional changes in a routine
workplace setting and only occasional contact with coworkers,
supervisors, and the general public. She is likely to be absent from work
one day per month and to be off task 10% of the work period.
(Tr. 37-38). Based upon the record as a whole including testimony from the vocational
expert, and given Plaintiff’s age, education, work experience, and RFC, the ALJ
determined that Plaintiff could perform work in the national economy including such jobs
as packager, folder, and inspector. Accordingly, the ALJ determined that Plaintiff is not
2

under disability, as defined in the Social Security Regulations, and is not entitled SSI.
Id.
The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s
decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff
argues that the ALJ erred by: (1) failing to find that Plaintiff’s impairments meet or equal
Listing 12.05(c); (2) assigning little weight to the findings of Plaintiff’s treating clinical
nurse; 3) improperly evaluating Dr. Groneck’s findings; 4) failing to find that Plaintiff’s
migraines were a severe impairment. Upon close analysis, I conclude that the ALJ’s
decision should be affirmed.
II. Analysis
A. Judicial Standard of Review
To be eligible for SSI or DIB a claimant must be under a “disability” within the
definition of the Social Security Act. See 42 U.S.C. §§ 423(a), (d), 1382c(a). The
definition of the term “disability” is essentially the same for both DIB and SSI. See
Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory
meaning, a “disability” includes only physical or mental impairments that are both
“medically determinable” and severe enough to prevent the applicant from (1)
performing his or her past job and (2) engaging in “substantial gainful activity” that is
available in the regional or national economies. See Bowen, 476 U.S. at 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the
court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
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Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal
quotation omitted). In conducting this review, the court should consider the record as a
whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence
supports the ALJ’s denial of benefits, then that finding must be affirmed, even if
substantial evidence also exists in the record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion .
. . . The substantial evidence standard presupposes that there is a ‘zone
of choice’ within which the Secretary may proceed without interference
from the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.
Id. (citations omitted).
In considering an application for disability benefits, the Social Security Agency is
guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if
the claimant is still performing substantial gainful activity; at Step 2, the Commissioner
determines if one or more of the claimant’s impairments are “severe;” at Step 3, the
Commissioner analyzes whether the claimant’s impairments, singly or in combination,
meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner
determines whether or not the claimant can still perform his or her past relevant work;
and finally, at Step 5, if it is established that claimant can no longer perform his or her
past relevant work, the burden of proof shifts to the agency to determine whether a
significant number of other jobs which the claimant can perform exist in the national
economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir.
2006); 20 C.F.R. §§404.1520, 416.920.

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A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she
is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking
benefits must present sufficient evidence to show that, during the relevant time period,
he or she suffered an impairment, or combination of impairments, expected to last at
least twelve months, that left him or her unable to perform any job in the national
economy. 42 U.S.C. § 423(d)(1)(A).
B. The ALJ’s decision is supported by Substantial Evidence
1. Listing 12.05 (C)
Plaintiff’s first assignment of error contends that the ALJ erred in finding that her
impairments do not meet or equal the requirements for Listing 12.05(C). Upon careful
review and for the reasons that follow, the undersigned finds that the ALJ's decision is
substantially supported.
Listing 12.05 provides as follows:
12.05 Mental Retardation: mental retardation refers to significantly subaverage
general intellectual functioning with adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
A.

Mental incapacity evidenced by dependence upon others for personal
needs (e.g., toileting, eating, dressing, or bathing) and inability to follow
directions, such that the use of standardized measures of intellectual
functioning is precluded; OR

B.

A valid verbal, performance, or full scale IQ of 59 or less; OR

C.

A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant
work-related limitation of function OR

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D.

A valid verbal, performance, or full scale IQ of 60 through 70, resulting in
at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence or pace; or
4. Repeated episodes of decompensation, each of extended duration

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
To meet the requirements of a listed impairment, a plaintiff must satisfy all of the
elements of that impairment. See Hale v. Secretary of Health & Human Servs., 816 F.2d
1078, 1083 (6th Cir.1987) (citing King v. Heckler, 742 F.2d 968, 973 (6th Cir.1984)).
Accordingly, under Listing 12.05(C), a plaintiff must first demonstrate that her
impairment satisfies the diagnostic description for mental retardation within 12.05, in
addition to meeting the criteria of subsection C of 12.05. See Foster v. Halter, 279 F.3d
348, 354 (6th Cir.2001). Thus, a claimant will meet the Listing for mental retardation
only “[i]f [the claimant's] impairment satisfies the diagnostic description in the
introductory paragraph and any one of the four sets of criteria....” Carmack v. Barnhart,
No. 04–6152147 Fed.Appx. 557, *560 (6th Cir.2005) (quoting 20 C.F.R. Pt. 404, Subpt.
P, App. 1 § 12.00(A) (emphasis added)).
The diagnostic description of mental retardation is as follows:
Mental retardation refers to significantly subaverage general intellectual
functioning with deficits in adaptative functioning initially manifested during
the developmental period: i.e., the evidence demonstrates or supports
onset of the impairment before age 22.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.
“Adaptive functioning refers to how effectively individuals cope with common life
demands and how well they meet the standards of personal independence expected of
someone in their particular age group, sociocultural background, and community
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setting.” DSM–IV, p. 42. “Adaptive functioning” includes the plaintiff's “effectiveness in
areas such as social skills, communication, and daily living skills.” West v. Comm'r Soc.
Sec. Admin., 240 F. App'x 692, 698 (6th Cir.2007) (citing Heller v. Doe by Doe, 509 U.S.
312, 329, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993)). Mental retardation requires
concurrent deficits or impairments in present adaptive functioning in at least two of the
following areas: communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure, health,
and safety. DSM–IV, p. 49.B
In the present case, at step-three of the sequential analysis, the ALJ determined
that Plaintiff's impairments do not meet or equal the requirements of any Listing. (Tr.
17-18). Specifically, with respect to Listing 12.05C, the ALJ’s decision states in relevant
part:
The “paragraph C” criteria of listing 12.05 are not met because, although
the claimant was measured with a full scale IQ of 67 and a verbal
comprehension score of 70 during consultative psychological examination
in August 2013, the examining psychologist found her to have verbal and
nonverbal reasoning abilities falling in the borderline range.
The
examining psychologist also noted that the claimant graduated from high
school with variable grades in special education classes, with reported
learning problems in reading, writing, and math. He stated that the
claimant’s overall intellectual abilities fall in the “extremely low” range,
rather than at a level indicative of intellectual disability. The consultatively
examining psychologist diagnosed borderline intellectual functioning rather
than intellectual disability, demonstrating his opinion that other
appropriately considered factors concerning the claimant’s mental health
status outweigh the results of intelligence testing concerning the presence
of intellectual disability.

(Tr. 37).
Plaintiff argues, however, that the ALJ’s decision in this regard is not
substantially supported because the record establishes that she has qualifying IQ
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scores and that her school records establish deficits in adaptive functioning before age
22. Plaintiff’s contention is misplaced.
As noted above, an IQ score standing alone, is insufficient to meet the Listing
requirements of 12.05(C). As noted above, Plaintiff must first demonstrate that her
impairment(s) satisfies the diagnostic description for mental retardation within 12.05. In
this case, there is no evidence in the record that she has been diagnosed with mental
retardation, nor evidence that Plaintiff suffers from “significantly subaverage general
intellectual functioning with deficits in adaptive functioning.” Foster v. Halter, 279 F.3d
348, 354 (6th Cir. 2001). Notably, Ms. Kunesh, the school psychologist who
administered Plaintiff’s IQ testing, never diagnosed mental retardation. (Tr. 320, 332).
Moreover, adaptive functioning refers to “how effectively individuals cope with
common life demands and how well they meet the standards of personal independence
expected of someone in their particular age group, sociocultural background, and
community setting.” See DSM-IV-TR at 42. As the Sixth Circuit has noted, adaptive
deficits refer generally to an individual’s “effectiveness in areas such as social skills,
communication, and daily living skills.” West, 240 F. App’x at 698. The ALJ directly
addressed these areas in his decision and showed how the claimant’s problems did not
rise to a listing level. Notably, the ALJ and the State Agency reviewing psychologists
found no more than moderate limitations in any areas of relevance to adaptive skills.
(Tr. 36, 41, 149, 163). See also Courter, 479 F. App’x at 721 (the fact that “none of the
experts found ‘marked’ restrictions or difficulties, instead finding only ‘moderate’ or ‘mild’
limitations” “supported [the ALJ’s] finding that [Plaintiff] did not qualify as mentally

8

retarded under Section 12.05”). No doctor found more than moderate limitations in such
areas.
Here, the ALJ discussed in detail Plaintiff’s lack of diagnosis of intellectual
disability or mental retardation. Further, the ALJ noted Plaintiff’s broad daily activities
and social functioning, which was sufficient to rebut the presence of adaptive deficits. It
is well settled that a Plaintiff retains the burden at the third step of the sequential
evaluation to establish that she meets or equals a listed impairment. See Evans v. Sec'y
of Health & Human Servs., 820 F.2d 161, 164 (6th Cir.1987). Because it is her burden,
at step three, to show that a listing can be met or equaled, Plaintiff's assignment of error
should be overruled.
2. Weight assigned to Ms. Spradlin
Plaintiff argues next that the ALJ erred by assigning little weight to the findings of
Ms. Spradlin, Plaintiff’s treating clinical nurse. Plaintiff’s contention lacks merit.
The record indicates Plaintiff began treating at Solutions Community Counseling
and Recovery in October 2013. Ms. Duncan’s clinical nurse at Solutions, Ms. Spradlin
completed a medical source statement describing Ms. Duncan’s limitations and abilities
in October 2014.

(Tr. 501-503). Ms. Spradlin, relying on her experience and her

longitudinal treatment history, determined that Ms. Duncan had “marked” limitations in
the following:
 ability to accept instruction from or respond appropriately to criticism
from supervisors or superiors;
 ability to work in coordination with or in proximity to others without
distracting them or exhibiting extremes;
 ability to respond appropriately to co-workers or peers;

9

 ability to relate to the general public and maintain socially appropriate
behavior;
 ability to perform and complete work tasks in a normal work day or work
week at a consistent pace;
 ability to process subjective information accurately and to use
appropriate judgment;
 ability to carry through instructions and complete tasks independently;
 ability to maintain attention and concentration for more than brief periods
of time;
 ability to perform at production levels experienced by most employers;
 ability to respond to changes in work setting;
 ability to behave predictably, reliably and in an emotionally stable
manner;
 ability to maintain personal appearance and hygiene; and
 ability to tolerate customary work pressures.

(Tr. 501-503).
Ms. Spradlin went on to note that Ms. Duncan has a “marked impairment in her
ability to tolerate even mild stress. Stress of any type causes worsening of symptoms
and less ability to manage illness.” (Tr. 503).
In formulating Plaintiff’s RFC, the ALJ assigned little weight to the findings of Ms.
Spradlin. In so concluding, the ALJ noted that Ms. Spradlin was not an acceptable
medical source as defined by Agency Regulations.

In any event, the ALJ’s RFC did

incorporate Ms. Spradlin’s opinion in part, finding that Plaintiff cannot do any production
rate work, can tolerate only occasional changes in the routine workplace setting, and
can tolerate only occasional contact with coworkers, supervisors and the general public.
(Tr. 40).

Plaintiff argues, however, that the ALJ failed to properly evaluate Ms.

Spradlin’s opinion in accordance with SSR 06-03p. Plaintiff’s assertion is unavailing.
An administrative law judge is not required to afford the same level of deference
to opinions of “other sources” as he or she must afford to the opinions of “acceptable
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medical sources.” See 20 C.F.R. § 404.1513(a) (noting that information from
“other sources” cannot establish the existence of an impairment, and that there must
be evidence from an “acceptable medical source” for this purpose). In any event, the
ALJ must “consider all relevant evidence in the case record,” which necessarily
includes evidence from “other sources.” Social Security Ruling (SSR) 06–03p, 2006 WL
2329939 (Aug. 9, 2006) (providing that in assessing the weight afforded to opinions
from other medical sources,” the Commissioner will consider the same factors utilized to
assess opinions from acceptable medical sources such as the length, nature, and
extent of the relationship, the consistency of the opinion with other evidence, and the
degree to which the source presents relevant evidence to support an opinion).
The ALJ properly considered that Ms. Spradlin was not an acceptable medical
source under the regulations, but was considered “other source”. (Tr. 40). See 20
C.F.R. § 404.1513(d); Engebrecht v. Comm'r of Soc. Sec., 572 F. App'x 392, 399 (6th
Cir.2014) (a therapist—is not properly classified as an “acceptable medical source”
opinion but is an “other source” opinion); See also 20 C.F.R. § 404.1513 (1997); Cruse
v. Comm'r of Soc. Sec., 502 F.3d 532, 541 (6th Cir.2007) (a nurse practitioner is listed
under “other [non-medical] sources.”). The ALJ’s decision further indicates that he
included part of Ms. Spradlin’s findings that he found consistent with the evidence of
record. Moreover, the ALJ relied on the findings of State Agency psychologists Dr.
Zwissler and Dr. Tangeman, who both found moderate limitations. (Tr. 149, 163).
As noted by the Commissioner, while the ALJ could have explained in more
detail within the same paragraph why he did not think Ms. Spradlin’s opinion was
consistent with the record evidence, his decision clearly complies with SSR 06-09p.
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Notably, “SSR 06–03p, in contrast to regulations pertaining to the handling of treating
source opinions, does not require that an adjudicator articulate ‘good reasons' for the
rejecting of an ‘other source's' opinion....” Saucier v. Astrue, 2011 WL 1158256, *5 (D.
Me. March 28, 2011), adopted and affirmed 2011 WL 1526952 (D. Me. Apr. 22, 2011).
See also Stanley v. Comm'r of Soc. Sec., No. 1:14-CV-870, 2015 WL 9473402, at *5
(S.D. Ohio Dec. 2, 2015), report and recommendation adopted, No. 1:14CV870, 2015
WL 9460322 (S.D. Ohio Dec. 28, 2015) (“While regulations require an ALJ to articulate
‘good reasons' on the record only when rejecting the opinion of a treating physician, in
this case, the ALJ went far beyond than what the regulations require by articulating
‘good reasons' for rejecting the physical therapist's opinions.”).
3. Dr. Groneck
Plaintiff argues next that the ALJ failed to properly evaluate Dr. Groneck’s
findings. Notably, in August 2013, Taylor Groneck, Psy.D. provided a consultative
psychological evaluation of Plaintiff. (Tr. 365-72). Dr. Groneck’s evaluation included
WAIS-IV intelligence testing in which Plaintiff obtained a full scale IQ of 67 with a verbal
comprehension score of 70 and a perceptual reasoning score of 71. (Tr. 369-70). Dr.
Groneck further opined that Plaintiff’s abilities in verbal and nonverbal reasoning were
“falling in the borderline range.” (Tr. 37). He determined that Plaintiff demonstrated
comprehension problems and required simplification of questions to ensure
understanding.

He found that Plaintiff had limited short-term and working memory

ability and would likely experience difficulty retaining multistep job instructions.

He

further found that her ability to focus and concentrate appeared to be adequate, that her
ability to focus did not seem to be limited, and that she worked hard and persisted well
12

despite a slow work pace. Dr. Groneck concluded, inter alia, that due to Plaintiff’s
intellectual limitations, she would likely struggle to adjust to major and unexpected
changes in working conditions and would require support when adjusting to a change in
task.
The ALJ assigned great weight to Dr. Groneck’s assessment because it was
based upon his examination of Plaintiff and his narrative report was consistent with the
findings from his examination.

Thus, the ALJ relied on Dr. Groneck’s findings in

formulating Plaintiff’s RFC. As noted above, the ALJ found that Plaintiff could not do
production rate pace work, could tolerate only occasional changes in the routine
workplace setting, and can tolerate only occasional contact with coworkers, supervisors
and the general public. (Tr. 40).
Plaintiff contends that the ALJ’s RFC is not substantially supported because he
did not accommodate Dr. Groneck’s limitation that Plaintiff “would likely require support
when adjusting to a change in task,” despite giving Dr. Groneck’s opinion great weight.
(Pl. Br. at 15; Tr. 372). Plaintiff’s contention lacks merit.
Notably, the ALJ was not required to incorporate any of the opined limitations
into the RFC. It is the ALJ’s sole duty to determine Plaintiff’s RFC and there is no
requirement that the ALJ adopt the opinion of any medical source. See Rudd v. Comm’r
of Soc. Sec., 531 F. App’x 719, 728 (6th Cir. 2013) (“[T]o require the ALJ to base her
RFC finding on a physician’s opinion, would, in effect, confer upon the treating source
the authority to make the determination or decision about whether an individual is under
a disability, and thus would be an abdication of the Commissioner’s statutory

13

responsibility to determine whether an individual is disabled.”) (internal quotation marks
and citation omitted).
Moreover, the fact that the RFC differed slightly from these opinions does not
show error because it was the ALJ’s role—not the psychologists’—to assess Plaintiff’s
RFC. See 20 C.F.R. §§ 404.1546(c), 416.946(c) (the final responsibility for crafting an
RFC is reserved to the Commissioner); see also Roy v. Apfel, 23 F. App’x 389, 390 (6th
Cir. 2001) (“[T]he ALJ did not impermissibly substitute his own opinion for that of the
doctors because the ALJ was speaking about residual functional capacity, an area
where the ALJ makes the legal decision.”); Hensley v. Colvin, 829 F.3d 926, 932 (8th
Cir. 2016) (“[T]here is no requirement that an RFC finding be supported by a specific
medical opinion.”).
More importantly, the ALJ accommodated this opinion from Dr. Groneck by
limited Plaintiff to unskilled work. As noted by the Commissioner, unskilled work is
“work which needs little or no judgment to do simple duties that can be learned on the
job in a short period of time.” 20 C.F.R. § 416.968(a). Such jobs can usually be learned
in 30 days. Id. As such, unskilled jobs entail tasks that can be learned quickly,
suggesting that they do not require retraining on the job or changing tasks. Furthermore,
at step-five of the sequential evaluation, the jobs identified by the vocational expert that
plaintiff could perform (packager, folder and inspector) all involve “repetitive or short
cycle work.” (See Dictionary of Occupational Titles (“DOT”) 559.687-074 (G.P.O.), 1991
WL 683797 (4th Ed. 1991); DOT 369.687-018 (G.P.O.), 1991 WL 673072 (4th Ed.
1991); DOT 741.687-010 (G.P.O.), 1991 WL 680249 (4th Ed. 1991).

14

Accordingly, the undersigned finds that the ALJ properly evaluated the findings of
Dr. Groneck as required by agency regulations and controlling law.

4. Migraines
Plaintiff’s final assignment of error asserts that the ALJ erred at step-two of the
sequential evaluation process by failing to consider Plaintiff’s migraines in his decision
and failing to classify them as a severe or non-severe medically determinable
impairment. (Pl. Br. at 16).
At step two, the Commissioner determines if one or more of the claimant’s
impairments are “severe.” For an impairment to be “severe,” it must be expected to last
more than 12 months and more than “minimally” affect a claimant's work ability. See 42
U.S.C. § 423(d)(1)(A); Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (“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”).
Errors at Step 2 of the sequential analysis will not necessarily require reversal, if
the ALJ finds at least one “severe” impairment and therefore continues with the
remaining steps in the sequential process. That is because in determining a plaintiff's
residual functional capacity and ability to work later in the sequential process,
the ALJ must

consider

even

the

impairments

found

not

to

be

“severe”

at Step 2. See Maziarz v. Secretary of Health and Human Servs., 837 F.2d 240, 244
(6th Cir. 1987); 20 C.F.R. § 404.1520. Thus, regulations require an ALJ to “consider the
limiting effects of all [the claimant's] impairment(s), even those that are not severe, in
determining [the claimant's] residual functional capacity. Pain or other symptoms may
15

cause a limitation of function beyond that which can be determined on the basis of the
anatomical, physiological or psychological abnormalities considered alone....” 20 C.F.R.
§ 404.1545(e).
In this case, the ALJ found several “severe” impairments, including chronic
obstructive pulmonary disease (COPD), asthma, diabetes, obesity, depression, and
affective disorder and therefore proceeded through the five-step sequential analysis.
Even if there was an error, then, the ALJ's failure to consider Plaintiff's migraines as
“severe” at Step 2 of the sequential analysis will not necessarily require reversal or
remand. Contrary to Plaintiff's claim, the ALJ also reasonably considered her
impairments in combination. As stated above, the ALJ found that Plaintiff had several
severe impairments. (Tr. 23). The ALJ also mentioned migraines at multiple points in
the decision, adopted medical opinions that considered migraines to be severe, and
included migraine-related limitations in the RFC finding.
Accordingly, the undersigned finds that the ALJ adequately considered all of
Plaintiff's conditions in determining her RFC and therefore did not err at step-two of the
sequential evaluation.
III. Conclusion and Recommendation
For the reasons explained herein, IT IS RECOMMENDED THAT Defendant’s
decision be found to be SUPPORTED BY SUBSTANTIAL EVIDENCE, and
AFFIRMED, and that this case be CLOSED.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AMY DUNCAN,

Case No. 1:16-cv-1003

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

17