Wheeler v. Commissioner of Social Security
ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 18 in that the Commissioner's decision is affirmed and this action is DISMISSED. Signed by Judge James L. Graham on 9/18/17. (sem)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Cynthia L. Wheeler,
Case No. 2:16-cv-327
Plaintiff Cynthia L. Wheeler brings this action under 42
U.S.C. §§405(g) for review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying her applications for
supplemental security income and disability insurance benefits. In
a decision dated January 20, 2015, the administrative law judge
(“ALJ”) found in step two of the five-step analysis required under
cervical, thoracic and lumbar spine with thoracic and lumbar
scoliosis and a history of C5-C6 fusion, obesity, psoriasis with
psoriatic arthritis, degenerative joint disease of the hips and
knees, diabetes mellitus, migraine headaches, a history of right
shoulder capsulitis, mood disorder, anxiety disorder, personality
disorder and a history of drug seeking.
considering the entire record, the ALJ found that plaintiff’s
residual functional capacity (“RFC”) would permit her to perform
sedentary work with some physical limitations.
The RFC also
limited plaintiff to performing simple repetitive and moderately
complex tasks that have infrequent changes in job duties and do not
require a fast work pace or strict production quotas, with no more
than occasional contact with supervisors and coworkers and no
contact with the general public. PAGEID 64. After considering the
testimony of a vocational expert, the ALJ decided that there were
jobs which plaintiff could perform and that plaintiff was not
plaintiff’s August 17, 2017, objections to the August 3, 2017,
report and recommendation of the magistrate judge recommending that
the decision of the Commissioner be affirmed.
The government has
filed a response to the objections.
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
§ 636(b)(1); see also Fed. R. Civ. P. 72(b).
Upon review, the
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”
Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”).
Put another way, a decision supported by
substantial evidence is not subject to reversal, even if the
reviewing court might arrive at a different conclusion.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
Even if supported by
substantial evidence, however, “‘a decision of the Commissioner
will not be upheld where the [Commissioner] fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial right.’”
v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
A. Step Two Analysis
Plaintiff argues that the ALJ erred in not discussing
arthritis, osteoarthritis, gastric bypass surgery, and hand and
shoulder weakness during his step two analysis.
judge noted that plaintiff does not contend that these conditions
are severe, but simply claims that the ALJ erred in failing to
discuss them at step two.
Doc. 18 at 11.
In determining whether a claimant is disabled, the ALJ must
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
At step two, the Commissioner must determine whether the claimant
has a severe impairment.
20 C.F.R. §404.1520(a)(4)(ii).
groundless claims, see Farris v. Sec’y of Health & Human Servs.,
773 F.2d 85, 89 (6th Cir. 1985), and is a “de minimis hurdle,” see
Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988).
Where an ALJ
finds at least one severe impairment and considers all of a
claimant’s impairments in the remaining steps of the disability
impairments at step two does not constitute reversible error.
Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir.
2009)(citing Maziarz v. Sec’y of Health & Human Servs., 837 F.2d
240, 244 (6th Cir. 1987)).
The court agrees with the magistrate judge’s recommendation
that this claim of error be overruled.
Although the step two
section of the ALJ’s opinion is brief, the ALJ incorporates later
discussions of plaintiff’s medical conditions into this section,
stating, “Specific limitations are discussed below.”
The ALJ also stated that in making his RFC findings, he “considered
all symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence and
Some of the ailments mentioned by plaintiff in this objection
were in fact found by the ALJ at step two to be severe impairments.
The listing of severe impairments included migraine headaches. See
The ALJ found additional severe impairments consisting
of psoriatic arthritis and degenerative joint disease of the hips
and knees, which, as the magistrate judge observed, were identified
in treatment notes as symptoms of osteoarthritic disease and
See PAGEID 58-59; Doc. 18 at 11.
also referred to these conditions later in his decision.
PAGEID 67 (noting plaintiff’s treatment for a migraine headache on
October 21, 2012); PAGEID 60, 66 (noting that plaintiff had mild
osteoarthritis of both knees, but that her condition did not meet
The ALJ also addressed and considered medical ailments which
he found to be nonsevere.
The ALJ discussed plaintiff’s 2012
lymphadenopathy (with no evidence of lymphoma), a condition which
was resolved with treatment. PAGEID 66. He summarized plaintiff’s
self-professed claims that she has fibromyalgia, but correctly
noted that plaintiff has never been diagnosed by a physician as
having this condition, as required under SSR 12-2P (S.S.A.), 2012
WL 3104869 (July 25, 2012).
PAGEID 69, 74-75.
The ALJ also
commenting that plaintiff “has been able to keep most of her weight
off since having gastric bypass surgery in April 2007.” PAGEID 65,
On a related issue, the ALJ listed obesity as a severe
impairment and considered
“its effect both on the severity of the
claimant’s limitations and on her residual function capacity.”
However, he observed that plaintiff’s weight did not
appear to seriously impact her ability to walk in an effective
manner, and that plaintiff did not specifically allege significant
impairment as a result of obesity.
Finally, the ALJ reviewed records concerning plaintiff’s
claims of hand and shoulder weakness.
See PAGEID 66 (noting an
exam on October 6, 2012, which showed that “[s]trength was slightly
decreased (4/5) on the left albeit with poor effort”); PAGEID 67
plaintiff was given a psychiatry referral due to a possible
nonphysical etiology of her complaints of right-sided weakness);
PAGEID 69 (noting a medical exam in May, 2013, which showed that
plaintiff had full strength and range of motion).
The ALJ also
stated that the evidence did not show that plaintiff is unable to
perform fine and gross movements effectively.
See PAGEID 59.
Because the ALJ adequately addressed plaintiff’s severe and
nonsevere impairments in other parts of his decision, any error
which occurred due to the ALJ’s failure to discuss them under the
step two heading of the decision was harmless.
B. RFC Determination
Plaintiff argues that the RFC formulated by the ALJ failed to
specifically address some of the limitations discussed in the
report of Dr. Kent Rowland, Ph.D., a consultant who saw plaintiff
for a mental evaluation on February 20, 2013.
The court agrees
with the magistrate judge’s recommendation that this objection is
not well taken.
A claimant’s RFC is the most that a claimant can do despite
his or her limitations.
20 U.S.C. §404.1545(a)(1).
determined by the functional limitations imposed by a condition,
not the mere diagnosis of it.
Hill v. Comm’r of Soc. Sec., 560
F.App’x 547, 551 (6th Cir. 2014). In making the RFC determination,
the ALJ must evaluate all the medical evidence as well as the
Webb v. Comm’r of Soc. Sec., 368 F.3d 629,
633 (6th Cir. 2004). However, the ALJ, not a physician, ultimately
determines the claimant’s RFC.
Coldiron v. Comm’r of Soc. Sec.,
391 F.App’x 435, 439 (6th Cir. 2010); 20 C.F.R. §§404.1527(e)(2)
Plaintiff first notes Dr. Rowland’s statement that plaintiff
“should be expected to understand and apply instructions in a work
setting consistent with average intellectual functioning (with the
exception of when her capabilities are muted by symptoms of her
anxiety and depression.)”
Although the ALJ limited
plaintiff to performing simple repetitive and moderately complex
tasks that have infrequent changes in job duties and do not require
a fast work pace or strict production quotas, see PAGEID 64,
plaintiff argues that the ALJ erred in not explaining how these
accommodations adequately addressed the frequency of her inability
to perform intellectual functions due to her mental impairments.
Aside from the fact that an ALJ need not discuss every piece
of evidence in the record for his decision to stand, see Thacker v.
plaintiff’s argument fails because Dr. Rowland expressed no opinion
as to how frequently plaintiff’s anxiety and depression would
“mute” her intellectual functioning in a work setting, nor did he
opine that the “muting” of her intellectual functioning would be to
a degree which would render her unable to perform her job duties.
The ALJ cannot be faulted for not specifically discussing how the
RFC took into account the frequency of plaintiff’s mental symptoms
when Dr. Rowland expressed no opinion as to how often plaintiff was
likely to experience these symptoms to a degree which would
interfere with her intellectual functioning or impact her job
Plaintiff takes issue with the magistrate judge’s statement
that plaintiff “does not put forward evidence to dispute that her
‘muted’ capabilities are not considered by the ALJ as one of her
mental impairments[,]” see Doc. 18 at 15, as somehow impermissibly
shifting some burden of proof to plaintiff. While this sentence is
awkwardly worded, the court construes it as an observation, and a
administrative record or in the wording of the ALJ’s decision which
would support her argument that the ALJ failed to consider her
“muted” intellectual capabilities in formulating the RFC. In fact,
the ALJ gave significant weight to Dr. Rowland’s opinion.
The ALJ stated that Dr. Rowland “did not believe [plaintiff]
was limited in maintaining attention, concentration, persistence,
and pace for work related tasks, except as her capacity was muted
by symptoms of anxiety and depression” and that plaintiff “was able
to attend and concentrate effectively during her evaluation.”
The ALJ also cited Dr. Rowland’s report that plaintiff
would be likely to overreact to stressful situations and work
pressures because of her anxiety disorder and personality disorder
in finding that plaintiff “would experience moderate difficulty
concentration, persistence or pace due to mental impairments.”
The ALJ also gave great weight to the opinions of Vicki
Warren, Ph.D., and Irma Johnston, Psy. D., the state agency
PAGEID 69, 75-76.
The opinions of these experts
further support the ALJ’s RFC findings.
For example, Dr. Johnston
indicated that plaintiff was moderately limited in her ability to
detailed instructions, to maintain attention and concentration for
extended periods, and to respond appropriately to changes in the
The word “moderate” is normally
defined in social security cases as describing a limitation that is
not work preclusive and that allows the individual to function
See Doc. 20, pp. 17-18 (citing Ziggas v. Colvin,
No. 1:13-cv-87, 2014 WL 1814019 at *6 (S.D. Ohio May 6, 2014) and
Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006)).
Johnston concluded that plaintiff was capable of understanding
simple to moderately complex one to four-step instructions in a low
pressure environment where the pace is not fast and of adapting to
settings where changes are infrequent.
limiting plaintiff to simple repetitive and moderately complex
tasks that have infrequent changes in job duties and do not require
a fast work pace or strict production quotas took into account the
limitations posed by Dr. Johnston.
accommodate Dr. Rowland’s findings regarding plaintiff’s social
inappropriately to coworkers and supervisors.
that ALJ did not explain how the RFC’s limitation of “no more than
occasional contact with supervisors and coworkers and no contact
with the general public” addressed the limitations in Dr. Rowland’s
report, where he stated that plaintiff is prone to “daily episodes
of rage that are inappropriately expressed” and “I suspect that she
See PAGEID 504.
Dr. Rowland did not opine that these social limitations would
preclude plaintiff from maintaining employment.
In addition, the
regarding plaintiff’s social functioning and explains why the
accommodations in the RFC are adequate.
The ALJ acknowledged Dr.
inappropriately to supervisors and coworkers.
PAGEID 61, 69.
However, the ALJ also cited medical records which indicated that,
although plaintiff, on some occasions, was noted to be belligerent
and irritable, in other instances she was reported as having a
stable mood and affect.
The ALJ further observed that
although plaintiff testified at the hearing that she screamed at
family members daily, she also stated that she enjoyed playing with
The ALJ concluded that the
evidence “indicates no more than a moderate limitation” in social
The RFC is also supported by the opinion
of Dr. Johnston, who stated that plaintiff is moderately limited in
her ability to accept instructions from supervisors and to get
along with coworkers.
Dr. Johnston recommended that
plaintiff have infrequent contact with supervisors and coworkers
and no contact with the general public, see PAGEID 172, and these
work restrictions were basically included in the
The court concludes that the ALJ adequately explained his RFC
findings, and that the RFC is supported by substantial evidence.
In accordance with the foregoing, the court concludes that the
The plaintiff’s objections (Doc. 19) are denied.
recommendation (Doc. 18). The Commissioner’s decision is affirmed,
and this action is dismissed. The clerk shall enter final judgment
affirming the decision of the Commissioner.
It is so ordered.
Date: September 18, 2017
s/James L. Graham
James L. Graham
United States District Judge
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