McGee v. Commissioner of Social Security

Filing 22

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Beth A McGee. It is RECOMMENDED that the Plaintiff's statement of errors be OVERRULED and that judgment be entered in favor of Defendant. Objections to R&R due by 5/19/2016. Signed by Magistrate Judge Kimberly A. Jolson on 5/2/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BETH A. McGEE,
Plaintiff,
v.

Civil Action 2:15-cv-894
Judge Michael H. Watson
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Beth McGee, filed this action under 42 U.S.C. §§ 405(g) and 1383(c) seeking
review of a decision of the Commissioner of Social Security (the “Commissioner”) denying her
application for disability insurance benefits. For the reasons that follow, it is
RECOMMENDED that the Plaintiff’s statement of errors be OVERRULED, and that
judgment be entered in favor of Defendant.
I.

FACTUAL AND MEDICAL BACKGROUND
Plaintiff applied for benefits on September 22, 2011, alleging disability since January 1,

2009, due to: Systemic Lupus Erythematosus (“lupus”), cholastatic hepatitis, liver damage,
autoimmune hemolytic anemia, Hodgkin’s disease, coronary heart disease, hypothyroidism, back
pain, anxiety, and depression. (Doc. 14 at 3). Plaintiff was last insured on December 31, 2011.
(Tr. 50, PAGEID #102).
After initial administrative denials of Plaintiff’s claims, an Administrative Law Judge
(“ALJ”) heard her case on October 24, 2013. (Tr. 41, PAGEID #93). In a decision dated

November 19, 2013, the ALJ denied benefits. That became the Commissioner’s final decision
on January 22, 2015, when the Appeals Council denied review.
Plaintiff filed this case on March 13, 2015, and the Commissioner filed the administrative
record on June 16, 2015 (Doc. 10). Plaintiff filed a Statement of Specific Errors on August 18,
2015 (Doc. 14), the Commissioner responded on November 16, 2015 (Doc. 19), and Plaintiff
filed a Reply Brief on December 2, 2015 (Doc. 20).
A.

Personal Background

Plaintiff was born on November 27, 1961 (Tr. 48, PAGEID #100), and she was 47 years
old on the alleged onset date of disability (Tr. 50, PAGEID #102). She has a high school
education and cosmetology training (Tr. 49, PAGEID #101), and work experience as a filing
clerk, switchboard operator, and data-entry clerk (Tr. 54, PAGEID #106). Plaintiff also worked
as a receptionist (Tr. 53, PAGEID #105), and as a salesperson for two different companies (Tr.
51, PAGEID #103).
B.

Hearing Testimony

At the hearing, Plaintiff testified that she is “tired all the time,” needs to watch for
infections, cannot be exposed to light, and suffers from a weakened immune system. (Tr. 56-57,
PAGEID #108-109). Plaintiff indicated that, due to her immune deficiency problems, she is sick
“close to 40” weeks per year. (Tr. 70, PAGEID #122). She takes Prednisone and Plaquenil for
lupus, and suffers from Hepatitis C and a bad back. (Tr. 57, PAGEID #109). Plaintiff’s lupus
causes her to suffer from a rash that is sore and itches, which is related to exposure to light, and a
foggy mind. (Tr. 64-65, 68, PAGEID #116-117, 120). Plaintiff has not had surgery since 2008,
when she had a part of her intestine removed in a bowel resection. (Tr. 58, PAGEID #110).
Plaintiff testified to problems with her bowels, citing a need to take Metamucil. Id.

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Plaintiff also testified that she is able to walk a mile, but she may “hurt later” or “hurt the
next day.” (Tr. 60, PAGEID #112). Plaintiff can bend forward and squat; stand for
approximately 15 to 20 minutes; and sit for an hour. (Tr. 61-62, PAGEID #113-14). Plaintiff
has no problems with her hands and arms, and can lift 10 to 15 pounds. (Tr. 61, PAGEID #113).
Plaintiff is able to take care of her personal hygiene, including showering, bathing,
dressing, and washing her hair. (Tr. 65, PAGEID #117). Although Plaintiff needs to pace
herself, she tidies her house, dusts, makes the bed, and does laundry. (Tr. 66, PAGEID #118).
For leisure, Plaintiff reads, gardens, does jigsaw puzzles, and plays toss with her dog. (Tr. 6667, PAGEID #118-19). Plaintiff belongs to the Ladies Auxiliary of the American Legion, where
she volunteers approximately two to three hours per month. (Tr. 67, PAGEID #119). If Plaintiff
exerts herself by, for example, volunteering and cleaning, she needs a couple of days to recover.
(Tr. 68, PAGEID #120).
The vocational expert testified that a hypothetical person of similar age and education as
Plaintiff with a limitation of light exertional work could perform Plaintiff’s past jobs as file clerk,
telephone operator, data-entry clerk, general merchandise sales representative, and receptionist.
(Tr. 74, PAGEID #126). In addition, the vocational expert testified that a hypothetical person of
similar age and education as Plaintiff with an exertional level changed to sedentary work could
perform Plaintiff’s past jobs as receptionist, telephone operator, and data-entry clerk.
C.

Third-Party Report

James McGee, Plaintiff’s husband, completed a third-party report. Mr. McGee reiterated
that Plaintiff is unable to stand for long periods, tires easily, and is sensitive to light. (Tr. 250,
PAGEID #302). Mr. McGee stated that Plaintiff’s daily activities include reading, watching
television, some cooking, feeding the dog, and cleaning. (Tr. 251, PAGEID #303; Tr. 254,

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PAGEID #306). Mr. McGee indicated that Plaintiff has no problem with personal care, although
it now takes her additional time, and she does light dusting and places the dishes in the
dishwasher. (Tr. 251-52, PAGEID #303-304). In addition, Mr. McGee stated that Plaintiff is
able to pay bills, count change, handle a savings account, and use a checkbook or money orders.
(Tr. 253, PAGEID #305). Mr. McGee also stated that Plaintiff no longer hikes or goes to the
beach, does less yard work and cleaning, and has difficulty sleeping. (Tr. 251, PAGEID #303).
D.

Relevant Medical Evidence

Plaintiff alleges an onset date of January 1, 2009. The administrative record includes
medical records before and after that date.
1.

Before Onset Date

Plaintiff visited Parks Dermatology on July 15, 2008, and August 6, 2008, for a painful
rash related to lupus, with a low-grade fever. (Tr. 474-77, PAGEID #526-529). When Plaintiff
returned on August 12, 2008, it was noted that her “[l]upus flare” was “resolving,” and a
handwritten note reflects that Plaintiff was “doing great!” (Tr. 473, PAGEID #525). Plaintiff
returned to Parks Dermatology on August 19, 2008, and it was reported again that she was
“doing great!” with respect to her lupus. (Tr. 472, PAGEID #524).
Mayo Clinic records from October 29, 2008 to November 1, 2008 reflect that Plaintiff
underwent a small bowel resection, which she tolerated well. (Tr. 285, PAGEID #337). Prior to
surgery, Plaintiff presented with a history of persistent nausea, vomiting, and weight loss (Tr.
290, PAGEID #342), though Plaintiff’s appearance was “normal” and she demonstrated “[n]o
signs of distress” (Tr. 292, PAGEID #344). The record further indicates that Plaintiff was “able
to walk 2-3 blocks and go up a flight of stairs without chest pain or shortness of breath.” (Tr.
291, PAGEID #343). It was opined that Plaintiff’s small obstruction developed from radiation

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for lymphoma. (Tr. 295, PAGEID #347).
Mayo Clinic records from December 12, 2008, reveal that Plaintiff underwent a biopsy
for lesions that were detected during an MRI on her spine. (Tr. 301, PAGEID #353). The
biopsy was found to be “nondiagnostic” and Plaintiff was reportedly “asymptomatic in these
areas.” (Tr. 307, PAGEID #359).
2.

After Onset Date

A record from Plaintiff’s return visit to Parks Dermatology on April 20, 2009, reflects
that Plaintiff’s “lupus [was] doing ok” and her condition was “stable.” (Tr. 468, PAGEID #520).
Plaintiff’s records demonstrate that she had lesions on her back on April 7, 2010 (Tr. 466,
PAGEID #518), and on her back and chest on October 6, 2010 (Tr. 350, PAGEID #402).
Plaintiff was seen again on October 14, 2009, and it was reported that she was using sunblock
and having good results. (Tr. 353, PAGEID #405). Upon reexamination on October 19, 2010
(Tr. 347, PAGEID #397), and again on April 6, 2011 (Tr. 345, PAGEID #397), Plaintiff’s skin
was noted to have healed.
Due to her history of coronary artery disease, Plaintiff underwent an “angioplasty of the
atrioventricular circumflex” on December 27, 2009. (Tr. 337, PAGEID #389). Plaintiff had a
follow-up cardiology visit on March 4, 2010, where she reported suffering from an “‘aphasic’
episode where she was verbally non-responsive and was staring into space.” Id. At the
appointment, Plaintiff declined a neurologic evaluation, indicating that she would call if she had
recurrent episodes. (Tr. 339, PAGEID #391).
About six months later, Plaintiff had a return cardiology visit on September 2, 2010,
during which it was noted that Plaintiff was given “[o]n-going care” for “[c]oronary artery
disease” and “[m]oderate mitral and tricuspid regurgitation.” (Tr. 311, PAGEID #363). The

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treating physician noted that Plaintiff was asymptomatic, and her general health status was
unchanged. Id. The treating physician recommended that Plaintiff engage in 45 minutes of
aerobic exercise at least 5-6 times a week, and that she return for a follow-up in 10 to 12 months.
(Tr. 313, PAGEID #365).
Plaintiff had a return visit for hepatitis on April 7, 2010. (Tr. 334, PAGEID #386).
Although Plaintiff had “severe itching, with cholestatic symptomatology, and jaundice,” she had
a “gradual resolution of her symptoms . . . .” Id. Plaintiff expressed feeling “the best she ha[d]
felt in months,” and her anemia was “asymptomatic.” (Id.; Tr. 335, PAGEID #387).
Plaintiff had a number of return visits for hematology. During her appointment on May
4, 2010, it was noted that Plaintiff was “feeling a lot better,” had “[m]ore energy,” had “been
physically active,” had no skeletal pain, no respiratory symptoms, and no cardiac symptoms.
(Tr. 330, PAGEID #382). The physician also noted that Plaintiff still had abnormalities in her
spine. (Tr. 331, PAGEID #383).

Plaintiff expressed “[f]eeling a lot better” on June 7, 2010,

and medical records state that Plaintiff had “responded to Prednisone very well.” (Tr. 328,
PAGEID #380). It was noted on August 2, 2010, that Plaintiff “felt well,” and “ha[d] no new
complaints of fatigue or other concerning symptoms for anemia.” (Tr. 323, PAGEID #375). On
September 2, 2010, the treating physician’s review of Plaintiff’s systems was “[e]ssentially
unremarkable.” (Tr. 318, PAGEID #370). Likewise, on September 27, 2010, Plaintiff was
“[f]eeling well,” had “[n]o back pain,” and “[n]o cardiac symptoms.” (Tr. 309, PAGEID #361).
Plaintiff reported “feeling tired a lot” during an appointment on February 8, 2011, indicating that
her arms felt tired when she put them above her head. (Tr. 307, PAGEID #359).
Plaintiff also underwent a blood transfusion on May 5, 2010. (Tr. 298, PAGEID #350).
Although it is not clear from her records why she needed the blood transfusion, Plaintiff tolerated

6

it well and was discharged in stable condition. Id. Plaintiff also had a return visit for
hypothyroidism on September 26, 2011, during which she had no complaints or symptoms. (Tr.
359, PAGEID #411).
Plaintiff visited Dr. Charles Geiger for “a regular check up” for thyroid, anemia, coronary
artery disease, and lupus on October 1, 2012. (Tr. 448, PAGEID #500). Plaintiff reported that
she felt “tired frequently” and was experiencing “back pain down to [her] hips.” Id. Plaintiff’s
skin appeared normal, with no rash. (Tr. 451, PAGEID #503). Plaintiff saw Dr. Geiger again on
February 1, 2013, to follow-up on lab results and also for examination of a rash on her arm,
which was “going on for a few months but getting better.” (Tr. 443, PAGEID #495). Plaintiff
also had a knot behind her right ear that was sore for approximately ten days. Id. At that
appointment, Plaintiff reported no pain (Tr. 444, PAGEID #496), and specifically no chest pain
and no palpitation (Tr. 445, PAGEID #497). In addition, Plaintiff’s chronic conditions were
noted to be stable. (Tr. 444, PAGEID #496).
On August 26, 2013, Dr. George Cholak, a non-treating physician with access to
Plaintiff’s medical records, signed a form designed to follow Social Security Listing 14.02 for
lupus. (Tr. 457, PAGEID #509). The word “Yes” is checked to indicate that Plaintiff’s
condition involved the following body systems: joints, muscles, ocular, respiratory,
cardiovascular, digestive, skin, neurological, and mental. Id. The word “Yes” is also checked to
indicate that the condition had lasted or was expected to last at least twelve months. (Tr. 458,
PAGEID #510). Where the form requests dates and results of testing, a handwritten note states
“Mayo,” and, in the comments section, a handwritten note states “Mayo Clinic.” Id. At the
hearing, Plaintiff’s counsel stated that nurses completed the form, and “Dr. Cholak signed off on
it.” (Tr. 47, PAGEID #99).

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E.

State Agency Assessments

State agency consultants, Dr. John Mormol and Dr. Rachel Rosenfeld, reviewed
Plaintiff’s medical records, and each separately concluded that Plaintiff’s impairments were not
severe. (Tr. 86-95, PAGEID # 138-47). The reviewing doctors did not review Mayo Clinic
records which Plaintiff submitted after they had conducted their review. The additional records
pertain to the small bowel obstruction and resulting surgery that took place before the onset date,
lesions found prior to the onset date resulting from lymphoma, and a blood transfusion which
occurred after the onset date. (Tr. 285-306, PAGEID #337-58).
F.

The ALJ’s Decision

On November 19, 2013, the ALJ issued an unfavorable decision. (Tr. 26-40, PAGEID
#78-92). The ALJ determined that Plaintiff had the following severe impairments: lupus,
coronary artery disease, cholestatic hepatitis, autoimmune hemolytic anemia, and
hypothyroidism. (Tr. 28, PAGEID #80). The ALJ found that she did not, however, meet the
requirements of an impairment listed in 20 CFR Subpart P, Appendix 1. (Tr. 29, PAGEID #81).
The ALJ ultimately found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work, except that she could not climb ladders, ropes, or scaffolds; only
occasionally climb ramps and stairs, balance, stoop, kneel, crouch, or crawl; could not have
concentrated exposure to temperature extremes, vibration, fumes, dust, odors, gases, and poor
ventilation; and must avoid hazards such as moving plant machinery and unprotected heights.
(Tr. 30, PAGEID #82). The ALJ opined that Plaintiff had the ability to perform her past job as a
receptionist, file clerk, telephone operator, data-entry clerk, or general merchandise sales
representative, which were not precluded despite his RFC finding. (Tr. 34-35, PAGEID #86-87).

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II.

STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if

supported by substantial evidence, shall be conclusive. . . .” “[S]ubstantial evidence is defined as
‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Secretary of Health and Human Servs.,
25 F.3d 284, 286 (6th Cir. 1994)). The Commissioner’s findings of fact must also be based upon
the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To this end, the
Court must “take into account whatever in the record fairly detracts from [the] weight” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002).
III.

DISCUSSION
In her statement, Plaintiff assigned three errors. She contends that the ALJ committed

reversible error in failing to provide a specific rationale for rejecting her testimony as required by
Social Security Ruling (“SSR”) 96-7p. Second, Plaintiff argues that the ALJ’s analysis of her
lupus is flawed, and, consequently, his conclusion that Plaintiff’s impairments do not meet or
equal Listing 14.02 is not supported by substantial evidence. Finally, Plaintiff argues that the
ALJ erred in failing to obtain a medical expert to assist in interpreting the additional medical
evidence received after review by the state agency medical consultants.
A.

The ALJ’s Credibility Determination

In evaluating a claimant’s credibility, an administrative law judge must consider the
objective medical evidence and the following factors:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or other
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symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medications the individual
takes to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of
pain and other symptoms;
6. Any measures other than the treatment the individual uses or has used to relieve pain
or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every
hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and restrictions
due to pain and other symptoms.
SSR 96-7, 1996 WL 374186 (July 2, 1996). The ALJ’s credibility determination is accorded
great weight and deference because of the ALJ’s unique opportunity to observe a witness’s
demeanor while testifying. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). If
the ALJ’s credibility determinations are explained and supported by substantial evidence, a court
is without authority to revisit those determinations. See Felisky v. Bowen, 35 F.3d 1027, 1036
(6th Cir. 1994); see also Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001) (noting the ALJ’s
credibility determination must not be “disturb[ed] absent [a] compelling reason”); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (stating that reviewing courts “may not try the case
de novo, nor resolve conflicts in evidence, nor decide questions of credibility”).
Here, the ALJ evaluated Plaintiff’s testimony and subjective complaints but found that
her “statements concerning the intensity, persistence and limiting effects of these symptoms are
not entirely credible . . . .” (Tr. 31, PAGEID #83). In reaching this conclusion, the ALJ
examined Plaintiff’s medical records in detail and considered each impairment in turn.
For example, as to Plaintiff’s cardiac condition, the ALJ noted, inter alia:

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•

in May 2010, Plaintiff reported experiencing no symptoms (Tr. 32, PAGEID #84; see
also Tr. 330, PAGEID #382);

•

in September 2010, Plaintiff’s physician recommended that she “participate in 45 minutes
of aerobic exercise at least five to six times a week and to follow-up with cardiology in
10 to 12 months” (Tr. 32, PAGEID #84; see also Tr. 313, PAGEID #365);

•

“the claimant has not had any exacerbations of this condition, nor do the records reflect
that the claimant has followed up with any specialized care for this condition since
September 2010 indicating that this condition is not as severe alleged by the claimant”
(Tr. 32, PAGEID #84);

•

“the claimant continually reported no chest pain or palpitation and it was reported that her
[coronary artery disease] was stable” (Tr. 32, PAGEID #84; see also Tr. 443-47,
PAGEID #495-99); and

•

Plaintiff’s cardiac condition did “not appear to be causing any more than minimal
functional limitations” (Tr. 32, PAGEID #84).

Taking all this into account, the ALJ determined that there was “no available evidence” that
Plaintiff’s cardiac condition would preclude her from performing a range of light exertional work
activity. (Tr. 32, PAGEID #84).
As to Plaintiff’s hepatitis and anemia conditions, the ALJ noted that, although Plaintiff
suffered severe itching, “she had a gradual resolution of her symptoms.” (Tr. 32, PAGEID #84;
see also Tr. 334, PAGEID #386). More specifically, the ALJ observed that, just four months
after Plaintiff “alleged becoming disabled, the claimant reported that she felt the best she had felt
in months and that she had no other liver-related concerns.” (Tr. 32, PAGEID #84; see also Tr.
334, PAGEID #386). At that time, laboratory testing showed improved condition, with just
minor abnormalities, and Plaintiff was reportedly “asymptomatic.” (Tr. 33, PAGEID #85; see
also Tr. 335, PAGEID #387). The ALJ likewise observed that there was:
no evidence of recurrence of jaundice, pruritus or other worrisome signs or symptoms of
hemolysis or liver abnormalities. The claimant’s liver condition and anemia have been
reported to remain stable through the claimant’s most recent medical records.

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(Tr. 33, PAGEID #85; see also Tr. 443-56, PAGEID #495-508). Therefore, the ALJ concluded
that he properly accommodated any symptoms caused by exacerbations of these conditions in
determining Plaintiff’s residual functional capacity. (Tr. 33, PAGEID #85).
As to Plaintiff’s Hodgkin’s lymphoma, the ALJ noted that, although imaging revealed
abnormalities in May 2010, those abnormalities had been present since 2008, Plaintiff remained
“asymptomatic,” and Plaintiff’s doctor did not make any recommendations for treatment. (Tr.
33, PAGEID #85; see also Tr. 330-31, PAGEID #382-83). The ALJ further observed that
Plaintiff had not sought any additional treatment for this condition since 2010. (Tr. 33, PAGEID
#85). Thus, the ALJ stated that he had given Plaintiff “the utmost benefit of a doubt” by
including Hodgkin’s lymphoma as a severe impairment and found that the specified “residual
functional capacity would accommodate any limitations imposed by this condition” by limiting
Plaintiff to a range of light exertional work. Id.
In addition, the ALJ found that medication was able to control Plaintiff’s hypothyroidism
and Dr. Geiger found her condition to be “stable” in October 2012 and February 2013. Id. The
ALJ stated that, although the condition did not appear to be causing Plaintiff any functional
limitations, “to afford the claimant the benefit of the doubt,” he “considered this a severe
impairment” and determined that the given residual functional capacity accommodates this
condition. Id.
The ALJ also examined Plaintiff’s lupus, which the Court discusses infra. Based upon
his review and discussion of the objective medical evidence, the ALJ found:
[o]verall, the claimant has a treatment history which fails to demonstrate a physical
condition of the degree of severity for which she has alleged. The claimant has a cardiac
condition for which there have been no exacerbations during the period at issue and with
no residual effects. The claimant’s hepatitis, anemia, and hypothyroidism seem to be
controlled by medication with only a few exacerbations and all are remaining stable. The

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claimant’s Hodgkin’s disease has only been treated conservatively during the period at
issue and, in fact, it was reported that the claimant was asymptomatic. The claimant’s
lupus does not appear to be causing any more than mild limitations on the claimant’s
ability to function. These conditions do not appear to be causing any more than minimal
functional limitations a[t] this time.
Id. The ALJ also considered the opinions of the state agency consultants, who were “in lock step
agreement” that Plaintiff had no severe impairments. (Tr. 34, PAGEID #86). Based on the
foregoing, the ALJ concluded that Plaintiff’s conditions were “not nearly as severe as alleged.”
(Tr. 33, PAGEID #85). However, to afford Plaintiff “the maximum benefit of the doubt,” the
ALJ “included all of these conditions as severe impairments and more than generously
accommodated for them in the . . . residual functional capacity.” Id.
The ALJ next observed that Plaintiff’s daily activities undermined her credibility,
because her activities “are not limited to the extent one would expect, given her complaints of
disabling symptoms and limitations.” (Tr. 33-34, PAGEID #85-86). In particular, the ALJ
noted, among other things, that Plaintiff takes care of pets, has no problems with personal
hygiene, is able to prepare meals, does the dishes, folds clothes, dusts, shops, gardens, and
volunteers. (Tr. 34, PAGEID #86). The ALJ further determined that Plaintiff’s activities
undermined her credibility concerning the severity of her symptoms and were “not consistent
with a totally disabled individual.” Id.
In addition, the ALJ considered the third-party report of Plaintiff’s husband, James
McGee, and found his statements did little to bolster Plaintiff’s credibility. (Tr. 34, PAGEID
#86; citing 8E). The ALJ made this finding because Mr. McGee’s “statements come from an
understandably biased point of view, and they are a mere rehash of claimant’s subjective
allegations, which . . . are inconsistent with the evidence as a whole.” (Tr. 34, PAGEID #86).
The ALJ next determined that Plaintiff’s work history also undermined her credibility.

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Id. Specifically, the ALJ noted that Plaintiff stopped working in 2007 “due to a business-related
layoff rather than because of the allegedly disabling impairments,” and “there is no evidence of a
significant deterioration in [her] medical condition since that layoff.” Id.; (see also Tr. 209,
PAGEID #261). Thus, the ALJ found a “reasonable inference” that Plaintiff’s “impairments
would not prevent the performance of that job, since it was being performed adequately at the
time of layoff despite a similar medical condition.” Id.
Based upon the foregoing, the ALJ noted and followed the appropriate standards,
performed an appropriate evaluation of the evidence, and clearly articulated the bases of his
credibility determinations. Although the ALJ considered Plaintiff’s subjective complaints, he
found that those complaints were not entirely credible. The analysis and credibility
determination of the ALJ enjoy substantial support in the record. Accordingly, the Court will
not—and indeed may not—revisit that credibility determination, see Jones v. Comm’r of Soc.
Sec., 336 F.3d 469, 476 (6th Cir. 2003), and the undersigned Magistrate Judge recommends
overruling this statement of error.
B.

The ALJ’s Determination that Plaintiff’s Impairments Do Not Meet or Equal
Listing 14.02

Plaintiff next argues that the ALJ erred at Step 3 because the record contains evidence
that she met or equaled Listing 14.02A. A claimant will be found disabled if her impairment
meets or equals one of the listings in the Listing of Impairments. Turner v. Comm’r of Soc. Sec.,
381 F. App’x 488, 491 (6th Cir. 2010) (citing 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii)). At Step 3 of the disability evaluation process, the claimant bears the burden
of demonstrating that the criteria of a listing are met or that her impairment is the medical
equivalent of a listing. Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011);

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Jones, 336 F.3d at 474. In order to obtain reversal on this ground, a claimant must satisfy all of
the criteria to meet the listing. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 653 (6th Cir.
2009). “An impairment that manifests only some of those criteria, no matter how severely, does
not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Although an ALJ’s evaluation of the
listings must contain sufficient analysis to allow for meaningful judicial review, Reynolds, 424 F.
App’x at 415-16, the ALJ is not held to a “heightened articulation standard” for a finding that a
listing has not been met or equaled. Bledsoe v. Bardhart, 165 F. App’x 408, 411 (6th Cir. 2006).
With respect to lupus, Listing 14.02(A) provides, in pertinent part:
14.02 Systemic lupus erythematosus. As described in 14.00D1 with:
A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate level of
severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever,
malaise, or involuntary weight loss).
20 C.F.R. § 404, Subpt. P, App. 1. In support of her position, Plaintiff relies on the questionnaire
completed by Dr. Cholak. Dr. Cholak was not Plaintiff’s treating physician and had not
personally examined Plaintiff but had access to Plaintiff’s medical records. (Doc. 14 at 10).
Plaintiff explains that:
[u]sing this information and his own medical experience, Dr. Cholak determined that the
Plaintiff had lupus which involved two or more organs/body systems (ocular, respiratory,
cardiovascular, renal, skin neurological and mental). (Tr. 453-454). Dr. Cholak
documented the Plaintiff’s associated symptoms of aches, weakness, anxiety, and
depression and constitutional symptoms of sever fatigue, fever, malaise, weight loss. Id.
Id. Plaintiff contends that the ALJ failed to give Dr. Cholak’s opinion appropriate consideration
because it demonstrates that her impairments meet or equal the criteria in Listing 14.02A.
The ALJ considered the questionnaire completed by Dr. Cholak, and noted:

15

Dr. Cholak reported that the claimant had systemic lupus erythematosus which involved
joints, muscles, ocular, respiratory, cardiovascular, renal, skin, neurological and mental
body systems. He described the claimant’s symptoms as aches, weakness, anxiety, and
depression. He also reported that this condition involved two or more organs/body
systems with significant, documented constitutional symptoms and signs of severe
fatigue, fever, malaise, and weight loss. He further reported that this condition had lasted
or was expected to last for at least twelve months.
(Tr. at 30, PAGEID #82). However, the ALJ found that Dr. Cholak’s assessment was entitled to
“very little weight” for several reasons. Id. First, the ALJ observed that Dr. Cholak was neither
a treating nor an examining physician. Id. Next, the ALJ found that the longitudinal medical
records did not support Dr. Cholak’s conclusion. Finally, the ALJ “reviewed the records from
the Mayo Clinic and [did] not find any significant medical evidence to support the severity of the
complaints . . . .” Id.
To challenge the ALJ’s analysis, Plaintiff relies on Rockson v. Comm’r of Soc. Sec., No.
13-cv-14486, 2014 WL 5421239, at *5-7 (E.D. Mich. Oct. 24, 2014), a case in which the ALJ
failed to satisfy his obligation of analyzing whether the plaintiff met the listing. In Rockson, the
District Court noted that “[t]he ALJ did not reject [the plaintiff’s] claim that she [was] suffering
symptoms of lupus, nor did he reject the medical evidence attesting to those symptoms; instead,
he challenge[d] the extent to which those symptoms affect[ed] her ability to perform work
functions.” Id. at *5. The District Court found that the ALJ’s consideration of the plaintiff’s
ability to perform work functions “[was] irrelevant to a Listings determination under 14.00,” and
an inappropriate basis to find the plaintiff failed at Step 3. Id.
Rockson is inapposite. At Step 3 in this case, the ALJ did not accept the medical
evidence supporting Plaintiff’s symptoms, nor did he base his listing determination on her ability
to work. To the contrary, the ALJ found that the medical evidence relied upon by Dr. Cholak
and Plaintiff’s medical record as a whole did not support Listing 14.02A’s requirements. The

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ALJ carefully examined the medical evidence relevant to lupus, including:
•

at an appointment near the date of onset, Plaintiff “was found to be doing great
with regards to her lupus.” (Tr. 32, PAGEID #84; see also Tr. 472, PAGEID
#524).

•

at a follow-up appointment in April 2009, it was determined that Plaintiff “was
doing okay” and “her condition was stable.” (Tr. 32, PAGEID #84; see also Tr.
468, PAGEID #520).

•

at a follow-up appointment six months later, “the claimant reported that she was
using sunblock and was having good results.” (Tr. 32, PAGEID #84; see also Tr.
353, PAGEID #405).

•

in April 2010, “the claimant was noted to have an exacerbation of this condition
with a lesion on her back. The claimant did not follow up on this condition for six
months at which time it was noted that claimant had abnormal lesions on the back
and chest. However, when reexamined on October 19, 2010, these areas were
noted to be healed.” (Tr. 32, citing Ex. 10F, PAGEID #84).

•

in October 2012, “Dr. Geiger’s assessment was chronic systemic lupus
erythematosus; however, he found the claimant’s skin to be normal upon
examination. The claimant then did not follow up with Dr. Geiger for nearly four
months, a[t] which time, the claimant presented for rash on her left arm, but the
claimant reported that the rash was improving.” (Tr. 32, citing Ex. 8F, PAGEID
#84).

Based upon his review of the entire medical record, the ALJ determined that “while the claimant
does have lupus, the severity of that . . . condition does not reach a debilitating level.” (Tr. 32,
PAGEID #84).
Plaintiff bears the burden of demonstrating that Listing 14.02A criteria are met or that her
impairment is the medical equivalent of the Listing. Though Plaintiff disagrees with the ALJ’s
evaluation of her medical record, she points to no evidence beyond Dr. Cholak’s assessment to
demonstrate that she suffered from lupus that met the Listing in 14.02A. Thus, Plaintiff fails to
demonstrate that the ALJ’s finding is not supported by substantial evidence.

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C.

The ALJ’s Failure to Obtain a Medical Expert

Finally, SSR 96-6p, in relevant part, requires an ALJ to obtain an updated medical
opinion “[w]hen additional medical evidence is received that in the opinion of the administrative
law judge . . . may change the State agency medical or psychological consultant’s finding that
the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments.”
SSR 96-6p, 1996 WL 374180 (July 2, 1996). An ALJ enjoys “substantial discretion” in
determining if new evidence needs to be evaluated by a medical expert. Primmer v. Comm’r of
Soc. Sec., No. 2:14-cv-2245, 2015 WL 7294539, at *7 (S.D. Ohio Nov. 19, 2015). Stated
differently, SSR 96-6p “explicitly grants the ALJ the discretion to determine whether the newlysubmitted evidence so changes the landscape of the claimant’s impairments that an expert could
now find them to medically equal a listing.” Id. (quoting Johnson v. Comm’r of Soc. Sec., No.
13-11658, 2014 WL 4798963, at *8 (E.D. Mich. Sept. 26, 2014)). The ALJ is not required to
make an explicit determination as to whether the new evidence requires an updated medical
opinion. See, e.g., Johnson, 2014 WL 4798963, at *9 (“The record substantially supports the
ALJ’s implicit determination that an updated medical determination is not required . . . . ”
(footnote omitted)).
After the state agency medical consultants had conducted their review, Plaintiff submitted
additional Mayo Clinic records which reflect a small bowel obstruction and resulting surgery that
took place before the onset date, lesions found prior to the onset date resulting from lymphoma,
and a blood transfusion. (Tr. 285-306, PAGEID #337-58). The ALJ examined the additional
medical records and found no need to obtain an updated medical opinion. The Court cannot
deem that to be an abuse of discretion. Consequently, the Court finds no merit in Plaintiff’s final
statement of error.
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IV.

RECOMMENDED DISPOSITION
For the reasons stated, it is RECOMMENDED that the Plaintiff’s statement of errors be

OVERRULED and that judgment be entered in favor of Defendant.
V.

PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed finding or recommendations to which objection is made, together with
supporting authority for the objection(s). A District Judge of this Court shall make a de novo
determination of those portions of the Report or specific proposed findings or recommendations
to which objection is made. Upon proper objection, a District Judge of this Court may accept,
reject, or modify, in whole or in part, the findings or recommendations made herein, may receive
further evidence or may recommit this matter to the Magistrate Judge with instructions.
28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

Date: May 2, 2016

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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