Wheeler v. Commissioner of Social Security

Filing 22

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
EASTERN DIVISION
Cynthia L. Wheeler,
Plaintiff,
v.

Case No. 2:16-cv-327

Commissioner of
Social Security,
Defendant.
ORDER
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
the

social

impairments

security
consisting

regulations
of

that

degenerative

plaintiff
disc

had

disease

severe
of

the

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.

PAGEID 58-59.

After

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
disabled.
This

PAGEID 77-78.
matter

is

before

the

court

for

consideration

of

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
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

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

2

reviewing court might arrive at a different conclusion.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

Mullen v.

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.’”

Rabbers

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)).
II. Objections
A. Step Two Analysis
Plaintiff argues that the ALJ erred in not discussing
fibromyalgia,

lymphadenopathy,

migraine

headaches,

her

rheumatoid

arthritis, osteoarthritis, gastric bypass surgery, and hand and
shoulder weakness during his step two analysis.

The magistrate

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
follow

the

five-step

analysis

in

20

C.F.R.

§404.1520(a)(4).

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).

is

the

the

means

by

which

Commissioner

screens

out

Step two
totally

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

3

determination,

an

ALJ’s

failure

to

find

additional

severe

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.”

PAGEID 59.

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
other evidence[.]”

PAGEID 64.

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
PAGEID 59.

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
rheumatoid arthritis.

See PAGEID 58-59; Doc. 18 at 11.

The ALJ

also referred to these conditions later in his decision.

See

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

requirements

for

the

listed

arthritis).

4

impairment

of

inflammatory

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).
referred

to

plaintiff’s

PAGEID 69, 74-75.

history

of

gastric

The ALJ also

bypass

surgery,

commenting that plaintiff “has been able to keep most of her weight
off since having gastric bypass surgery in April 2007.” PAGEID 65,
69.

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.”
PAGEID 60.

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.

PAGEID 60.

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
(noting

that

neurologic

findings

were

inconsistent

and

that

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

5

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).

Disability is

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
claimant’s testimony.

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)
and 404.1546(c).
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.)”

PAGEID 504.

6

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.
Comm’r

of

Soc.

Sec.,

99

F.App’x

661,

665

(6th

Cir.

2004),

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
performance.
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
valid

one,

that

plaintiff

has

pointed

to

nothing

in

the

administrative record or in the wording of the ALJ’s decision which

7

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.
69.

PAGEID

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.”
PAGEID 68.

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
completing

tasks

in

a

timely

manner

due

to

deficiencies

in

concentration, persistence or pace due to mental impairments.”
PAGEID 62.
The ALJ also gave great weight to the opinions of Vicki
Warren, Ph.D., and Irma Johnston, Psy. D., the state agency
consultants.

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
understand

and

remember

detailed

instructions,

to

carry

out

detailed instructions, to maintain attention and concentration for
extended periods, and to respond appropriately to changes in the
work setting.

PAGEID 171-172.

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
satisfactorily.

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

8

Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006)).

Dr.

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.

PAGEID 170-172.

The RFC

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.
Plaintiff

also

argues

that

the

ALJ

did

not

adequately

accommodate Dr. Rowland’s findings regarding plaintiff’s social
limitations,

specifically,

the

risk

of

plaintiff

inappropriately to coworkers and supervisors.

responding

Plaintiff contends

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
is

at

risk

coworkers.”

to

respond

inappropriately

to

supervision

and

See PAGEID 504.

Dr. Rowland did not opine that these social limitations would
preclude plaintiff from maintaining employment.
ALJ’s

decision

sufficiently

addresses

Dr.

In addition, the

Rowland’s

concerns

regarding plaintiff’s social functioning and explains why the
accommodations in the RFC are adequate.
Rowland’s

opinion

that

plaintiff

The ALJ acknowledged Dr.

was

at

inappropriately to supervisors and coworkers.

risk

to

respond

PAGEID 61, 69.

However, the ALJ also cited medical records which indicated that,

9

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.

PAGEID 61.

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
her grandchildren.

PAGEID 61-62.

The ALJ concluded that the

evidence “indicates no more than a moderate limitation” in social
functioning.

PAGEID 62.

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.

PAGEID 172.

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

RFC.

The court concludes that the ALJ adequately explained his RFC
findings, and that the RFC is supported by substantial evidence.
III. Conclusion
In accordance with the foregoing, the court concludes that the
ALJ’s

finding

evidence.
court

of

nondisability

is

supported

by

substantial

The plaintiff’s objections (Doc. 19) are denied.

adopts

and

affirms

the

magistrate

judge’s

report

The
and

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

10