Stewart v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS overruling Plaintiff's Statement of Errors and entering judgment in favor of Defendant. Objections to R&R due by 4/6/2018. Signed by Magistrate Judge Kimberly A. Jolson on 3/23/2018. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICHARD E. STEWART,
Plaintiff,
v.

Civil Action 2:17-cv-706
Judge James L. Graham
Magistrate Judge Jolson

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Richard E. Stewart, filed this action seeking review of a decision of the
Commissioner of Social Security (“Commissioner”) denying his Title II Social Security
Disability Benefits and Title XVI Supplemental Security Income Disability applications. For the
reasons that follow, it is RECOMMENDED that Plaintiff’s Statement of Errors (Doc. 8) be
OVERRULED and that judgment be entered in favor of Defendant.
I.

BACKGROUND
A. Prior Proceedings
Plaintiff filed applications for Title II Social Security Disability Benefits and Title XVI

Supplemental Security Disability Benefits on November 22, 2013. (See Doc. 7-3, Tr. 201, 215,
PAGEID #: 242, 256). In both applications, Plaintiff alleged disability beginning September 12,
2012. (Id.). After Plaintiff’s applications were denied initially and on reconsideration (Doc. 7-4,
Tr. 263–67, 271–74, PAGEID #: 305–09, 313–16), Plaintiff requested a hearing by an
Administrative Law Judge (id., Tr. 279, PAGEID #: 321).
Administrative Law Judge Deborah Ellis (the “ALJ”) held a video hearing on March 30,
2016. (Doc. 7-2, Tr. 105–49, PAGEID #: 145–89). On May 19, 2016, the ALJ issued a decision

finding that Plaintiff was not disabled as defined in the Social Security Act. (Id., Tr. 44–58,
PAGEID #: 84–98). The Appeals Council denied review, making the ALJ’s decision the final
decision of the Commissioner. (Id., Tr. 1, PAGEID #: 41).
Plaintiff filed this case on August 14, 2017 (Doc. 1-2), and the Commissioner filed the
administrative record on October 23, 2017 (Doc. 7). Plaintiff filed a Statement of Specific
Errors (Doc. 8), the Commissioner responded (Doc. 112), and Plaintiff filed a Reply (Doc. 13).
B. Relevant Medical Background
On March 30, 2010, Plaintiff saw Dr. Michael Shannon, a neurosurgeon, for his mid-back
and upper dorsal pain, but Plaintiff also complained of headaches and neck pain. (Doc. 7-7, Tr.
585, PAGEID #: 630). A cervical MRI revealed stenosis at C5-6 and C6-7 with disc rupture on
the left side, and Dr. Shannon recommended surgery. (Id.). Accordingly, on September 22,
2010, Plaintiff underwent an anterior cervical microdisckectomy at C5-6 and C6-7, as well as an
interbody fusion at C5-6 and C6-7. (Id., Tr. 583, 586, PAGEID #: 628, 631). At a follow up
appointment with Dr. Shannon on October 11, 2010, Plaintiff had good strength, sensation, and
reflexes throughout. (Id., Tr. 583, PAGEID #: 628).
On March 22, 2013, Plaintiff had an MRI of his cervical spine, which showed “a very
small central disc herniation at C4-5 without any noted foraminal narrowing and some disc
osteophyte complex at C5-6 which does not appear to impinge on either foramen or on the spinal
cord.” (Id., Tr. 500, 547, PAGEID #: 545, 592).
On April 11, 2013, Plaintiff saw Dr. Jeffrey Lobel for neck pain. (Doc. 7-7, Tr. 500,
PAGEID #: 545). At that time, Plaintiff stated that he did not remember suffering any trauma to
his neck, “but since he is a mechanic, he works with his hands and is frequently in awkward
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positions while working on cars.” (Id.). Dr. Lobel found that Plaintiff’s strength in his upper
extremities was intact, except for decreased strength with fingers of opposition on the right, as
well as decreased sensation in a median nerve distribution on the right side. (Id., Tr. 501,
PAGEID #: 546). Dr. Lobel noted, however, that he did not see any evidence of a herniated disc
or foraminal narrowing, and Plaintiff’s right arm and hand symptoms could be due to carpal
tunnel syndrome. (Id., Tr. 502, PAGEID #: 547).
Plaintiff again saw Dr. Lobel on April 25, 2013, at which time he stated Plaintiff had
normal range of motion, negative Spurling’s sign, and negative Hoffman’s sign. (Id., Tr. 503,
PAGEID #: 548).

An x-ray and CT scan of Plaintiff’s cervical spine showed only mild

spondylosis and intervertebral disk space narrowing. (Id., Tr. 549–52, PAGEID #: 594–97).
Another cervical x-ray taken on May 29, 2013, showed that Plaintiff had a reduced range of
motion with no evidence of listhesis. (Id., Tr. 557–58, PAGEID #: 602–03).
On February 4, 2014, Plaintiff underwent a Psychological Examination with Psychologist
James Spindler, M.S., for the Opportunities for Ohioans with Disabilities (OOD). (Id., Tr. 620,
PAGEID #: 665). Plaintiff reported that he had never received outpatient mental health services
nor been hospitalized for psychiatric problems. (Id., Tr. 622, PAGEID #: 667). During the
evaluation, the psychologist noted that Plaintiff’s thought associations were adequate, with no
fragmentation of thought or flight of ideas (id.); that Plaintiff was alert, knew the exact date, and
was oriented to place and person (id., Tr. 623, PAGEID #: 668); and that he had the impression
that Plaintiff “was over stating the impact of his depression on his daily routine” (id., Tr. 624,
PAGEID #: 669).
On March 10, 2014, Plaintiff saw Dr. Mark Weaver for the OOD. (Id., Tr. 631, PAGEID

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#: 676). Dr. Weaver noted a negative Romberg test and good finger-to-nose apposition sense.
(Id., Tr. 633, PAGEID #: 678). Dr. Weaver further found that although there was constant, mild,
involuntary spasm to inspection and palpation of the lower cervical, straight leg raising was
negative bilaterally and there were no organic radicular nerve root impingement findings. (Id.,
Tr. 643, PAGEID #: 679). Additionally, Dr. Weaver noted that Plaintiff was alert, oriented, and
his thought process appeared normal. (Id., Tr. 635, PAGEID #: 680).
Plaintiff was also seen at Genesis Healthcare System for shoulder and neck pain on
January 23, 2014, March 20, 2014, and April 30, 2014. (Doc. 7-8, Tr. 698–700, 703–08,
PAGEID #: 744–46, 749–54).

During his appointments, Plaintiff reported numbness and

tingling affecting his right arm, but his January appointment notes state that his light touch
sensation was symmetrical in the upper and lower extremities, and his March appointment
demonstrated normal motor strength, sensation, and reflexes. (Id.). Additionally, treatment
notes from April state that “upon clinical examination, it is not convincing that he is suffering
from facetogenic pain.” (Id., Tr. 707, PAGEID #: 753).
On March 20, 2104, state agency consultant Dr. Leigh Thomas found that Plaintiff had
some exertional and postural limitations, and noted his “obligatory use of cane,” but ultimately
opined that Plaintiff was only partially credible and not disabled.

(Doc. 7-3, Tr. 201–14,

PAGEID #: 242–55). Dr. Gary Hinzman, also a state agency consultant, affirmed Dr. Thomas’s
assessment on June 16, 2014. (Id., Tr. 231–45, PAGEID #: 272–86).
C. Relevant Testimony at the Administrative Hearing
At the outset, counsel for Plaintiff explained that Plaintiff had “a plethora of orthopedic
impairments, as well as some spinal, cervical spine impairments[], and . . . severe right carpal

4

tunnel impairment.” (Doc. 7-2, Tr. 109, PAGEID #: 149).
Plaintiff testified that he lives with his fiancée, who is on social security benefits, and his
children are grown. (Id., Tr. 110–11, PAGEID #: 150–51). Although Plaintiff has a driver’s
license, he stated that he doesn’t like to drive “[b]ecause my arms go numb and a lot of times I
don’t have control of my, my fingers and I just don’t feel safe.” (Id., Tr. 111–12, PAGEID #:
151–52). Plaintiff elaborated:
My, it’s like my hand and my fingers will go clear to sleep and I can’t feel them,
you know, I can’t grasp anything or hold anything. And it’s like if your foot goes
to sleep and it, it’s like so far gone that it’s burning and stinging and if you try to
press on it or it just hurts. That’s the way my fingers are all the time.
(Id., Tr. 112, PAGEID #: 152). As a result, Plaintiff testified that he normally doesn’t go
anywhere, although he tries to attend church weekly. (Id., Tr. 125, 129, PAGEID #: 165, 169).
Instead, Plaintiff spends most of his days “either lay[ing] in bed or lay[ing] on the couch” while
watching television. (Id., Tr. 132, PAGEID #: 171).
In terms of physical impairments, Plaintiff testified that he wears a brace on his right
knee every day for stabilization, and without it, his “knee will hyperextend either backwards or
sideways.” (Id., Tr. 123, PAGEID #: 163). With the brace, Plaintiff stated that he could stand
and walk for “about a half-hour or so.” (Id.). Further, Plaintiff stated that he uses a cane
everywhere he goes. (Id.). Even with the cane, however, Plaintiff testified that it’s hard for him
to get down the stairs and use the bathroom in his two-story home. (Id., Tr. 124, PAGEID
#:164).
Plaintiff also explained that he has issues with hands—such as numbness and burning—
as a result of his carpal tunnel. (Id., Tr. 130, PAGEID #: 170). Plaintiff wears a wrist brace that
he acknowledged “seems to help,” although he stated it’s hard to brush his teeth sometimes. (Id.,
5

Tr. 131–32, PAGEID #: 171–72). However, Plaintiff testified he is able to button his shirt and
tie his shoes “most of the time.” (Id., Tr. 132, PAGEID #: 172).
Turning to his cervical impairments, Plaintiff testified that his neck was doing “really
well after my [neck] surgery [in 2010] until about 12 months later, and then it exactly [sic] like it
did before my surgery.” (Id., Tr. 125, PAGEID #: 165). Plaintiff further described his neck
impairments to the ALJ:
My neck constantly hurts, it makes me have intense headaches almost daily. I
can’t move my head, I don’t have the movement like I used to, I can only move
my head certain part [sic], and if I try to move my head the pain radiates down
into my mid-back and in my right shoulder. I have muscle spasms all day long,
even though when I lay down and try to sleep my muscles are just spasming and I
can’t, it’s hard for me to get any sleep. I just can’t get comfortable, which is I’m
[sic] all the time.”
(Id., Tr. 125, PAGEID #: 165). Plaintiff explained that two surgeons opined that they couldn’t
fix his neck without surgery, but he is “really afraid to do that.” (Id., Tr. 126, PAGEID #: 166).
He also stated that he has received several injections that have not helped and he uses a TENS
unit every other day. (Id.). Plaintiff is prescribed several medications for pain, but testified that
the opiates cause constipation and have negatively impacted his ability to have a sexual
relationship. (Id., Tr. 127, PAGEID #: 167).
Plaintiff’s only testimony regarding mental impairments was when he explained that he
saw a life coach for eight or nine months because he was “in pain all the time, depression and
other mental issues come along with it and I was trying to get help for it.” (Id., Tr. 120,
PAGEID #: 160).
D. The ALJ’s Decision
The ALJ found that Plaintiff suffered from the following severe impairments:

6

osteoarthritis and allied disorders, degenerative disc disease of the cervical spine, status post
right rotator cuff repair, right sided carpal tunnel syndrome and other arthralgias. (Doc. 7-2, Tr.
46, PAGEID #: 86).

Further, the ALJ found that although Plaintiff was diagnosed with

depression, anxiety, and substance addiction disorder, these mental impairments did “not cause
more than minimal limitation in the claimant’s ability to perform basic mental work activities
and are therefore nonsevere.” (Id., Tr. 47, PAGEID #: 87).
Despite Plaintiff’s impairments, the ALJ found that none met the criteria of any listed
impairments described in Appendix 1 of the Regulations. (Id., Tr. 48, PAGEID #: 88). In
reaching that conclusion, the ALJ stated that she paid “particular attention” to Listing 1.02 and
1.04, but “[t]he medical evidence did not document listing-level severity and no acceptable
medical source ha[d] mentioned findings equivalent in severity to the criteria of any listed
impairment, individually or in combination.” (Id.). Further, the ALJ noted that her conclusion
was supported by the state agency medical consultants, who reviewed the record and came to the
same conclusions. (Id. (citing Ex. 1A; 2A; 5A; 6A)).
As to Plaintiff’s residual functional capacity (“RFC”), the ALJ stated:
[T]he claimant has the residual functional capacity to lift ten pounds occasionally
and less than ten pounds frequently using his hand that is not using a can while
ambulating. The claimant requires the use of a handheld device to ambulate. He
can occasionally carry ten pounds and frequently carry less than ten pounds with
the hand he is not using to carry his cane while walking. The claimant can push
and/or pull as much as he can lift and carry. The claimant can sit for a total of six
hours out of an eight-hour workday and stand or walk for a total of four hours of
an eight-hour workday. The claimant can operate foot controls with his lower
extremities on a frequent basis bilaterally. The claimant can operate hand
controls with his upper extremities on a frequent basis bilaterally. The claimant
can occasionally use his upper extremities for overhead reaching and can never
climb ladders, ropes, or scaffolds. The claimant can occasionally climb ramps
and stairs, occasionally balance and kneel. The claimant can frequently stoop and
never crouch or crawl. The claimant must avoid all exposure to unprotected
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heights, moving mechanical parts and he can never operate a motor vehicle.
(Id., Tr. 49, PAGEID #: 89).
Ultimately, the ALJ found that Plaintiff’s “statements regarding the severity of his
limitations [were] not entirely consistent with the evidence.” (Id., Tr. 55, PAGEID #: 95). More
specifically, the ALJ explained that the medical evidence did not support Plaintiff’s allegations:
The claimant testified that his knee impairments prevented him from standing for
more than a half hour at a time and that he required the use of can whenever he
walked. While the medical record indicates that the claimant consistently
reported pain in his right knee and imaging showed osteoarthritis in his right knee,
it also indicates that the claimant’s knee pain was treated with conservative
measures and there was no signs of laxity or instability in either of the claimant’s
knees (Ex. 8F/9–10; 20F/11–12). In addition, while the claimant sought and
received a prescription for a single point cane in July 2014, exams both before
and after July 2014 indicated that the claimant was able to ambulate unassisted
(Ex. 16F/3–11, 19F/7; 20F/6–7; 21F/23). In addition, multiple exams in 2015
showed a normal range of motion in his musculoskeletal system despite his
osteoarthritis in his knees (Ex. 22F/1–2; 26F/64).
***
The claimant also testified that his cervical impairment and carpal tunnel
syndrome caused numbness in his hands and arms. However, while the exams
from 2015 showed the claimant had slightly reduced strength in his upper
extremities, they also showed that the claimant had normal sensation in his hands
and upper extremities as late as December 2015 (Ex. 12F/5; 19F/7; 22F/2;
26F/64). In addition, during the claimant’s consultative exam in March 2014, he
had no difficulty handling and manipulating objects with either hand and in
December 2015, his grip strength was noted as equal and symmetrical (Ex. 12F/5;
26F/64).
(Id.).

This medical evidence, coupled with what the ALJ described as inconsistencies in

Plaintiff’s work history and activities of daily living, led the ALJ to conclude that Plaintiff’s
statements did “not support any additional limitations in his residual functional capacity.” (Id.,
Tr. 55–56, PAGEID #: 95–96).

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II.

STANDARD OF REVIEW
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.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g).
“[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. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). “Therefore, if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997)).
III.

DISCUSSION
Plaintiff asserts four assignments of error: (1) the ALJ failed to recognize and consider

Plaintiff’s headaches as a medically determinable impairment; (2) the ALJ erroneously held that
Plaintiff’s depression and anxiety are non-severe impairments; (3) the ALJ failed to properly
evaluate Plaintiff’s impairments under Medical Listing 1.04A; and (4) the ALJ improperly
evaluated Plaintiff’s credibility under SSR 96-7P. (Doc. 8).
A. Plaintiff’s Headaches
The Social Security Act defines “disability” as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment[.]”
Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 651–52 (6th Cir. 2009) (citing 42 U.S.C.
9

§ 423(d)(1)(A)). The Social Security regulations make clear that an individual’s symptoms,
“such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect
[an individual’s] ability to do basic work activities unless medical signs or laboratory findings
show that a medically determinable impairment(s) is present.” 20 C.F.R. § 404.1529. Indeed,
“[m]edical signs and laboratory findings, established by medically acceptable clinical or
laboratory diagnostic techniques, must show the existence of a medical impairment(s) which
results from anatomical, physiological, or psychological abnormalities and which could
reasonably be expected to produce the pain or other symptoms alleged.” Id.
Plaintiff argues that the ALJ failed to classify his headaches as a medically determinable
impairment.

(Doc. 8 at 13–15).

Indeed, Plaintiff argues “the record is replete with

documentation and diagnoses of [his] chronic headaches.” (Id. at 14, citing PAGEID #: 165;
630; 698; 709; 714; 746; 792; 805; 807; 838; 859; 868; 883; 887; 895; 966). Plaintiff thus avers
that because the ALJ failed to recognize his “chronic headaches in any capacity,” and the
potential impact of the headaches on Plaintiff, the RFC is not supported by substantial evidence.
(Id. at 15). The Court disagrees.
As the Commissioner correctly notes, Plaintiff points to no objective medical findings
that would lead the ALJ to conclude that his headaches qualify as a medically determinable
impairment.

Indeed, Plaintiff is unable to articulate, or reference any medical record that

documents, any limitations Plaintiff has as a result of his headaches. Instead, Plaintiff cites to
records that demonstrate he complained of headaches, but as noted above, this allegation of pain
alone is insufficient to qualify as a medically determinable impairment.

10

Finally, it is worth noting that Plaintiff made no mention of his headaches when he
applied for benefits (see Doc. 12 at 11; Doc. 7-3, Tr. 201, 215, PAGEID #: 242, 256), further
supporting the ALJ’s determination that Plaintiff’s headaches were not a medically determinable
impairment. See Griffith v. Colvin, No. 6:13-23, 2013 WL 5536476, at *3 (E.D. Ky. Oct. 7,
2013) (holding that because, inter alia, the plaintiff did not allege an intellectual impairment in
her application for SSI, evidence supported ALJ’s conclusion that the plaintiff did not have a
medically determinable intellectual impairment).
The Court thus finds that substantial evidence supports the ALJ’s conclusion that
Plaintiff’s headaches were not a separate medically determinable impairment.
B. Non-Severe Impairments
Under 20 C.F.R. § 404.1520(a)(4)(ii), at Step Two of the disability evaluation process,
the ALJ must determine the severity of Plaintiff’s alleged impairments. “An impairment is
considered severe if it “significantly limits an individual’s physical or mental ability to perform
basic work activities,” which are defined as “those abilities and aptitudes necessary to do most
jobs.” Dyer v. Colvin, No. CV 14-156-DLB, 2016 WL 1077906, at *3 (E.D. Ky. Mar. 17, 2016)
(citing 20 C.F.R. § 404.1521(b)).” An impairment or combination of impairments is not severe,
however, “if it does not significantly limit [an individual’s] ability to do basic work activities.”
20 C.F.R. §§ 404.1521. 1 Plaintiff argues that the ALJ’s decision to classify his depression and
anxiety as non-severe impairments “cannot be considered harmless error because both conditions
impact his ability to perform work activities on a sustained basis.” (Doc. 8 at 10). Additionally,
Plaintiff argues that his mental limitations “clearly affect his ability to perform substantial
gainful activity” and should have been included in the ALJ’s RFC determination. (Id. at 12).
1

This section, although no longer in effect, was effective at the time of the ALJ’s decision.

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The Sixth Circuit has explained the Step Two analysis as follows:
This circuit construes the step two severity regulation as a “de minimis hurdle,”
Rogers, 486 F.3d at 243 n. 2 (internal quotation marks and citation omitted),
intended to “screen out totally groundless claims.” Farris v. Sec’y of Health &
Human Servs., 773 F.2d 85, 89 (6th Cir. 1985). Thus, if an impairment has “more
than a minimal effect” on the claimant’s ability to do basic work activities, the
ALJ must treat it as “severe.” Soc. Sec. Rul. 96–3p, 1996 WL 374181 at * 1
(1996). After an ALJ makes a finding of severity as to even one impairment, the
ALJ “must consider limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe.’” Soc. Sec. Rul. 96–8p, 1996 WL
374184, at *5 (emphasis added). And when an ALJ considers all of a claimant’s
impairments in the remaining steps of the disability determination, an ALJ’s
failure to find additional severe impairments at step two does “not constitute
reversible error.” Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244
(6th Cir. 1987).
Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009).
Because the regulations require an ALJ to consider both severe and non-severe
impairments in the remaining steps of the disability determination analysis, once a severe
impairment is found, all impairments, regardless of how they are classified, are then analyzed in
the ALJ’s RFC determination. See Dyer, 2016 WL 1077906, at *3; see also Singleton v.
Comm’r of Soc. Sec., 137 F. Supp. 3d 1028, 1033 (S.D. Ohio 2015) (“[O]nce an ALJ determines
that one or more impairments is severe, the ALJ ‘must consider limitations and restrictions
imposed by all of an individual’s impairments, even those that are not severe.’”) (quoting Fisk v.
Astrue, 253 F. App’x. 580, 583 (6th Cir. 2007)).

“For this reason, the Sixth Circuit has

consistently held that an ALJ does not commit reversible error when he or she decides that some
of claimant’s impairments are not severe, but finds that other impairments are severe and
proceeds with his or her analysis.” Id.
Here, the ALJ provided an extensive discussion of Plaintiff’s mental impairments of
depression, anxiety and substance addiction disorder.
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(Doc. 7-2, Tr. 47, PAGEID #: 87).

Specifically, the ALJ found that (1) Plaintiff had mild limitations in activities of daily living
because Plaintiff’s grooming and personal hygiene were adequate, he was able to care for his
personal needs, he was able to attend church, and the reason he didn’t go anywhere on a regular
basis was based on physical impairments, not mental limitations; (2) Plaintiff had mild
limitations in social functioning, as the medical record did not show Plaintiff had any difficulty
interacting with treatment providers, he reported getting along with his mother and children
“pretty well”, and there was no indication Plaintiff was ever fired or laid off from a job due to
difficulty getting along with others; and (3) Plaintiff had only mild limitations in concentration,
persistence, or pace, based in part on the fact that his psychiatric exam in September 2014
showed his thought process was clear and linear, his judgment and insight were intact, and he
was well oriented to person, time, and place, in addition to the fact that no memory problems or
problems with concentration or attention were noted. (Id., Tr. 47–48, PAGEID #: 87–88). The
ALJ then explained that because Plaintiff’s mental impairments caused no more than “mild”
limitations, and he had experienced no episodes of decompensation, his impairments were nonsevere. (Id., Tr. 48, PAGEID #: 88).
Ultimately, the ALJ reasonably relied on this evidence in finding that Plaintiff’s mental
impairments did not result in significant limitations. But even if this Court found that the ALJ
improperly classified Plaintiff’s mental impairments as non-severe, the ALJ considered the effect
of all Plaintiff’s impairments—both severe and non-severe (see Doc. 7-2, Tr. 49–55, PAGEID #:
89–95)—“throughout the remaining steps of the analysis [thus] render[ing] any error harmless.”
Nejat, 359 F. App’x at 577; see also Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240,
244 (6th Cir. 1987) (holding that because the ALJ properly considered the impairment classified
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as non-severe “in determining whether claimant retained sufficient residual functional capacity
to allow him to perform substantial gainful activity,” the ALJ’s failure to classify that
impairment as severe “could not constitute reversible error.”).
C. Medical Listing 1.04A
“The third step in the sequential evaluation for disability benefits requires a determination
of whether an impairment or a combination of impairments meets or equals one or more of the
medical conditions listed in Appendix 1.” Gulley v. Comm’r of Soc. Sec., No. 1:16-CV-923,
2017 WL 4329632, at *3 (S.D. Ohio Aug. 3, 2017), report and recommendation adopted, No.
1:16CV923, 2017 WL 4310531 (S.D. Ohio Sept. 28, 2017) (citing 20 C.F.R. §§ 416.920,
416.925, 416.926)). An impairment meets one of the listed impairments “when it manifests the
specific findings described in the medical criteria for that particular impairment.” See, e.g.,
Garza v. Comm’r of Soc. Sec., No. 1:14-CV-1150, 2015 WL 8922011, at *3 (W.D. Mich. Nov.
25, 2015) (citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001); 20 C.F.R. §§ 404.1525(c),
416.925(c)). It is well-settled that a claimant does not satisfy a particular listing unless all of the
requirements of the listing are present. See, e.g., Berry v. Comm’r of Soc. Sec., 34 F. App’x 202,
203 (6th Cir. 2002); see also Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th
Cir. 2003) (“It is insufficient that a claimant comes close to meeting the requirements of a listed
impairment.”). Ultimately, it is the claimant’s burden to provide evidence that he meets or
equals a listed impairment. E.g., Gulley, 2017 WL 4329632, at *3 (citing Evans v. Sec’y of
Health & Human Servs., 820 F.2d 161, 164 (6th Cir. 1987)).
Here, Plaintiff argues that he put forth sufficient evidence to demonstrate that his
impairments met and/or equaled Listing 1.04A for disorders of the spine, and the ALJ
14

inappropriately disregarded that evidence. (Doc. 8 at 6–10). Plaintiff further contends that the
ALJ insufficiently explained why she found that Plaintiff did not meet the Listing. The Court
finds both arguments meritless.
1. Plaintiff Did Not Provide Sufficient Evidence
Listing 1.04A states:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine)[.]
20 C.F.R. Subpt. P. Appx. 1, Listing 1.04A. In other words, for Plaintiff to have been found
disabled at step three, he must have had (1) a spinal disorder that (2) result[ed] in ‘compromise
of a nerve root’ with (3) ‘neuro-anatomic distribution of pain,’ (4) ‘limitation of motion of the
spine,’ and (5) motor loss (muscle weakness) accompanied by (6) sensory or reflex loss.”
Gulley, 2017 WL 4329632, at *3 (emphasis added).
Plaintiff states that he has residual spurring posterior at C5-6, mild broad-based disk
protrusion at C4-5, numbness and tingling in his upper extremities, paraspinal spasms, and
reduced range of motion. (Doc. 8 at 7). These “objective findings” according to Plaintiff,
“satisfy the first prong of Listing 1.04 by showing evidence of nerve root compression[.]” (Id.).
However, none of the medical records expressly state that Plaintiff suffers from nerve root
compression. Indeed, a March 22, 2013 MRI showed mild broad-based disk protrusion like
Plaintiff noted, but without significant cord impingement (Doc. 7-7, Tr. 548, PAGEID #: 593),
15

and at a March 10, 2014 appointment Dr. Weaver noted there was no radicular nerve root
impingement findings. (Id., Tr. 643, PAGEID #: 679). See Roberts v. Comm’r of Soc. Sec., No.
12-14661, 2013 WL 6062018, at *16 (E.D. Mich. Nov. 18, 2013) (equating nerve root
impingement with nerve root compression).
“While there is some variation in the case law concerning the quantity of proof of actual
‘compression’ that is required to satisfy Listing 1.04A, many courts require fairly explicit
evidence.” Brauninger v. Comm’r of Soc. Sec., No. 1:16-CV-926, 2017 WL 5020137, at *4
(S.D. Ohio Nov. 3, 2017) (citing Adams v. Comm’r of Soc. Sec., 2014 WL 897381, at *9 n. 5
(E.D. Mich. Mar. 6, 2014) (noting that recent MRI results would not have altered the ALJ’s
decision on nerve root compression because they “indicate only that a disc protrusion ‘abuts the
S1 nerve roots,’ not that there is evidence of nerve root compression”); Barnes v. Comm’r of Soc.
Sec., 2013 WL 6328835, at *9 (E.D. Mich. Dec. 5, 2013) (“[Claimant’s] x-ray and CT scan show
degenerative disc disease and spinal canal stenosis, but there is no mention of nerve root
compression in the radiologist’s reports.”)).
At base, inferring nerve root compression based on Plaintiff’s complaints of numbness,
pain, and reduced range of motion, is not enough to satisfy the Listing. Miller v. Comm’r of Soc.
Sec., 848 F. Supp. 2d 694, 709 (E.D. Mich. 2011) (“An implication, based on radiating pain, is
not enough to satisfy the Listing.” (citing Steagall v. Comm’r of Soc. Sec., 2009 WL 806634
(S.D. Ohio 2009) (Treating physician’s opinion that plaintiff met the Listing for chronic
radiculopathy was insufficient to satisfy the listing where medical records stated that there was
no nerve root compression.); see also Adams v. Comm’r of Soc. Sec., No. 14-CV-14724, 2016
WL 1084681, at *4 (E.D. Mich. Mar. 21, 2016) (“To warrant remand, ‘[a] claimant must do
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more than point to evidence on which the ALJ could have based his finding ... [r]ather, the
claimant must point to specific evidence that demonstrates he reasonably could meet or equal
every requirement of the listing.’”) (quoting Smith-Johnson v. Comm’r of Soc. Sec., 579 F.
App’x 426, 432 (6th Cir. 2014)).
Additionally, although Plaintiff contends that the record demonstrates reduced range of
motion, there are just as many records, if not more, that document normal spinal and neck range
of motion. (See Doc. 12 at 5 (listing record cites)). Further, Plaintiff is unable to point to any
evidence showing motor loss or loss of reflex, which is required by the Listing. See Miller v.
Comm’r of Soc. Sec., 848 F. Supp. 2d 694, 709 (E.D. Mich. 2011). Thus, the undersigned agrees
with the Commissioner that Plaintiff failed to meet his burden of proof and there is no basis to
disturb the ALJ’s findings.
2. The ALJ Properly Explained Her Decision Regarding Listing 1.04
Plaintiff also argues that the ALJ failed to provide a detailed explanation of her
conclusion that the Listing was not met or equaled, as the Sixth Circuit required in Reynolds v.
Comm’r of Soc. Sec., 424 F. App’x 411 (6th Cir. 2011). (Doc. 8 at 9). In short, Reynolds held
that a court must “actually evaluate the evidence” and “give an explained conclusion” for why a
plaintiff did not meet a listing. Reynolds, 424 F. App’x at 416. The undersigned finds that the
ALJ sufficiently articulated her Step Three findings under this precedent.
The ALJ noted that she was paying particular attention to Listing 1.04 but found no
acceptable medical source had mentioned findings equivalent in severity to the listed
impairment.

(Doc. 7-2, Tr. 48, PAGEID #: 88).

consideration of Plaintiff’s neck impairments.
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Further, the ALJ’s opinion reflects her

For example, the ALJ acknowledged that

Plaintiff’s motor strength and sensation was normal in May 2012 (Id., Tr. 50, PAGEID #: 90
(citing Ex. 8F/9–10)); an April 2013 MRI showed no impingement of the spinal cord (id. (citing
8F/27)); Plaintiff had normal range of motion in his neck in April 2013 (id., Tr. 51, PAGEID #:
91 (citing 5F/7)); Plaintiff exhibited five out of five strength in all areas tested in January 2014
(id. (citing Ex. 15F/8)); Plaintiff showed normal motor strength, normal sensation and normal
reflexes in January 2014 (id., Tr. 52, PAGEID #: 92 (citing Ex. 19F/7)); and examinations
revealed normal range of motion in Plaintiff’s neck in March 2015 and December 2015,
respectively (id., Tr. 53, PAGEID #: 93 (citing 22F/1–2, 26F/64)).
While the ALJ’s discussion regarding Listing 1.04 appeared in a different section of her
opinion, that does not render her Step Three findings inadequate. See Bukowski v. Comm’r of
Soc. Sec., No. 13-CV-12040, 2014 WL 4823861, at *2 (E.D. Mich. Sept. 26, 2014). Indeed,
“district courts in this circuit have consistently found that an ALJ is under no obligation to spell
out every consideration that went into the step three determination or the weight he gave each
factor in his step three analysis[.]” Id. (quotations and citations omitted) (listing cases).
The Court thus concludes that the ALJ’s findings as to Listing 1.04 were sufficiently
articulated as to facilitate meaningful judicial review.
D. Credibility Determination
Finally, Plaintiff argues the ALJ improperly evaluated his credibility under SSR 96-7P.
(Doc. 8 at 15–16). As an initial matter, however, SSR 96-7p, 1996 WL 374186 (July 2, 1996)
was no longer in effect at the time of the ALJ’s decision. Instead, that regulation was superseded
by SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016), which eliminates the use of the term
“credibility” in order to “clarify that subjective symptom evaluation is not an examination of an
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individual’s character.” SSR 16-3p, 2016 WL 1119029 at *1. The new ruling directs the ALJ to
consider whether the claimant’s statements about the intensity, persistence, and limiting effects
of symptoms are consistent with the objective medical evidence and other evidence of record.
Id., 2016 WL 1119029 at *7.
Here, Plaintiff argues that the ALJ’s determination that Plaintiff’s statements were not
entirely consistent with the evidence is erroneous. (Doc. 8 at 15). In support, Plaintiff contends
that the ALJ’s “three-page recitation of the evidence” documents Plaintiff’s consistent treatment
and test results that are consistent with his testimony. (Id. at 15–16). According to Plaintiff, the
ALJ ignored this evidence and instead “cherry-picked statements from the record to support her
erroneous RFC.” (Id. at 16). This Court disagrees.
The ALJ ultimately concluded that Plaintiff’s statements regarding the severity of his
limitations were not consistent with his conservative treatment, diagnostic testing, his alleged
work history, and his activities of daily living. (See Doc. 7-2, Tr. 55, PAGEID #: 95). For
example, although Plaintiff testified that his impairments left him unable to work since
September 2012, as late as October 2013, Plaintiff reported right knee pain “after wearing a
brace and working all day.” (Id. (citing Ex. 3D/4; 20F/11) (emphasis added)). Additionally, the
ALJ found that Plaintiff’s own reports of daily living undermined his credibility and did not
support the severity of his allegations. (Doc. 7-2, Tr. 55, PAGEID #: 95). Plaintiff testified
during the hearing that his fiancé “does most of the cleaning” (Id., Tr. 140, PAGEID #: 180), yet
the ALJ noted in May 2015, Plaintiff reported “that he felt he had too much of the responsibility
in caring for his home and that if he did not do things around the house, they did not get done
(Ex. 27F/18).” (Id., Tr. 55–56, PAGEID #: 95–96).

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Thus, despite Plaintiff’s argument, these inconsistencies and treatment options were
proper factors for the ALJ to consider. See McKenzie v. Comm’r of Soc. Sec., No. 99-3400, 2000
WL 687680, at *4 (6th Cir. May 19, 2000) (“Plaintiff’s complaints of disabling pain are
undermined by his non aggressive treatment.”); Dutkiewicz v. Comm’r of Soc. Sec., 663 F. App’x
430, 433 (6th Cir. 2016) (finding a plaintiff’s testimony not fully credible because his claims
“that he suffered from severe pain and had disabling functional limitations was at odds with the
medical and work-history evidence in the record.”).

That the ALJ detailed Plaintiff’s

impairments over three pages of her opinion indicates the analysis was thorough, not that it was
erroneous.
Ultimately, the Court must accord great deference to an ALJ’s credibility assessment,
particularly because of the ALJ’s unique opportunity to observe the claimant and judge her
subjective complaints.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (citations omitted).
To that end, it is not the province of the reviewing court to “try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.” Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 528 (6th Cir. 1997). In this case, the ALJ set forth the various factors that she
considered in her credibility assessment, including specific citations to medical records,
treatment regimen, testimony at the hearing regarding Plaintiff’s work history and activities.
(See Doc. 7-2, Tr. 55–56, PAGEID #: 95–96). Thus, the ALJ complied with the regulations, and
her decision not to accept Plaintiff’s subjective complaints was supported by substantial
evidence. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (“[A]n ALJ is not
required to accept a claimant’s subjective complaints and may properly consider the credibility
of a claimant when making a determination of disability.”).
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IV.

CONCLUSION
For the reasons stated, it is RECOMMENDED that Plaintiff’s Statement of Errors (Doc.

8) be OVERRULED and that judgment be entered in favor of Defendant.

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 findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a 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). 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, 152–53 (1985).
IT IS SO ORDERED.

Date: March 23, 2018

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

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