Fresquez v. Commissioner of Social Security

Filing 15

ORDER.granting 11 Motion for Extension of Time and adopting Report and Recommendation re 13 Report and Recommendation affirming the decision by the Commissioner. Signed by Judge Michael R. Barrett on 3/31/19. (ba)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Krista A. Fresquez,
Plaintiff,
Case No.1:18cv114

v.

Judge Michael R. Barrett
Commissioner of Social Security,
Defendant.
ORDER
This matter is before the Court on the Magistrate Judge’s January 30, 2019 Report
and Recommendation (“R&R”) recommending that the Commissioner’s decision be
affirmed and this matter be closed on the docket of the Court. (Doc. 13).
When objections are received to a magistrate judge's R&R on a dispositive matter,
the assigned district judge “must determine de novo any part of the magistrate judge's
disposition that has been properly objected to.” FED. R. CIV. P. 72(b). After that review,
“[t]he district judge may accept, reject or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Id. Here,
proper notice was given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice
that the parties would waive further appeal if they failed to file objections to the R&R in a
timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir.1981). Plaintiff filed
timely objections. (Doc. 14). The Magistrate Judge completed a comprehensive review of
the record and the same will not be repeated here except to the extent necessary to
address Plaintiff’s objections.

Plaintiff argues that the Magistrate Judge erred by finding that the ALJ’s failure to
discuss Plaintiff’s Chronic Fatigue Syndrome (“CFS”) was harmless error and by relying
on Maziarz v. Sec’y of Health & Human Servs., 847 F.2d 240 (6th Cir. 1987), to make
that finding. (Doc. 14). Specifically, Plaintiff asserts that her CFS is a medically
determinable impairment, the ALJ failed to classify it as such, and this failure is not
harmless error because, “even if the ALJ mentioned the impairment after step two, . . .
the impairment was already deemed to have no impact whatsoever on [her] condition”
under the pertinent rules and regulations. (Id.).
After a de novo review of the filings in this matter, and particularly Plaintiff’s
Statement of Specific Errors, the R&R, and Plaintiff’s objections, the Court agrees with
the Magistrate Judge’s recommendation. The Magistrate Judge acknowledged that the
ALJ did not list Plaintiff’s CFS diagnosis as an impairment—either a medically
determinable impairment or non-medically determinable impairment—at Step 2. (Doc. 13
at PageID 1220). However, the Magistrate Judge found the ALJ’s failure to address
Plaintiff’s CFS as an impairment at Step 2 to be harmless error because the ALJ
“continued the sequential analysis through the determination of [Plaintiff]’s residual
functional capacity” and Plaintiff failed to both identify any functional limitations
attributable to her CFS that the ALJ failed to consider and to challenge the ALJ’s adverse
credibility determination. (Id. at PageID 1220-21) (relying on Maziarz, 847 F.2d at 244).
The Court finds Plaintiff’s argument—that “[t]his is an issue that focuses on
medically determinable versus non-medically determinable” instead of “an issue that
focuses on severe versus non-severe”—raises a distinction without a difference in light
of her failure to identify any functional limitations attributable to her CFS that the ALJ failed

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to consider and to challenge the ALJ’s adverse credibility determination. Cf. Rouse v.
Comm'r of Soc. Sec., No. 2:16-CV-223, 2017 WL 1102684, at *2 (S.D. Ohio Mar. 24,
2017) (“Despite it being “better practice [for an] ALJ to say explicitly which impairments
are found to be non-severe and which are found not to be medically determinable,” [the
plaintiff] was nevertheless unable to show how any of the impairments the ALJ did not list
as severe negatively affected her functioning or ability to complete the work listed in her
RPC.”).
Moreover, although Defendant’s unopposed Motion for an Extension of Time to file
her Memorandum in Opposition to Plaintiff’s opening brief remains pending (Doc. 11),
Defendant requested an extension up to and including October 12, 2018 and she filed
her Response in Opposition on that date (Doc. 12). The Court will grant Defendant’s
Motion and deem her Response as timely.
Based on the foregoing, the Court hereby GRANTS Defendant’s Motion an
Extension of Time (Doc. 11), ADOPTS the Magistrate Judge’s January 30, 2019 R&R
(Doc. 13), and AFFIRMS Defendant’s decision. This matter shall be CLOSED and
TERMINATED from the Court’s docket.
IT IS SO ORDERED.

_s/ Michael R. Barrett_________
Hon. Michael R. Barrett
United States District Judge

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