Thomas v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION: It is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED and that the Commissioner's decision be AFFIRMED re 3 Complaint filed by Tammy S. Thomas. Objections to R&R due by 3/1/2019. Signed by Magistrate Judge Elizabeth Preston Deavers on February 15, 2019. (jlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TAMMY S. THOMAS,
Plaintiff,
Case No. 2:18-cv-108
Judge Algenon L. Marbley
Chief Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Tammy S. Thomas, 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 application
for Social Security disability insurance benefits. This matter is before the United States
Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No.
8), the Commissioner’s Memorandum in Opposition (ECF No. 13), and the administrative record
(ECF No. 7). No reply has been filed. For the reasons that follow, it is RECOMMENDED that
Plaintiff’s Statement of Errors be OVERRULED and that the Commissioner’s decision be
AFFIRMED.
I.

BACKGROUND

Plaintiff filed her first application for disability insurance benefits on February 25, 2010,
alleging that she had been disabled since June 30, 2008. (R. at 157.) Plaintiff’s application was
denied initially and upon reconsideration. (Id.) Plaintiff sought a de novo hearing before an
administrative law judge. (Id.) Administrative Law Judge (“ALJ”) K. Michael Foley held a

hearing on June 18, 2012, at which Plaintiff, who was represented by counsel, appeared and
testified. (R. at 157, 169.) On August 28, 2012, ALJ Foley issued a decision finding that
Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 157–69.)
Plaintiff did not appeal this decision.
Plaintiff filed her second application (the instant application) for disability insurance
benefits in February 2014, alleging that she has been disabled since August 29, 2012. (R. at
288–89.) Plaintiff’s second application was denied initially and upon reconsideration. (R. at
174–200.) Plaintiff sought a de novo hearing before an administrative law judge. (R. at 247–48.)
ALJ Jason Earnhart held a hearing on April 15, 2016, at which Plaintiff, who was represented by
counsel, appeared and testified. (R. at 121–53.) On May 10, 2016, ALJ Earnhart issued a
decision finding that Plaintiff was not disabled within the meaning of the Social Security Act.
(R. at 204–20.) On August 30, 2017, the Appeals Council granted Plaintiff’s request for a
review of the ALJ’s decision. (R. at 284–87.) On December 12, 2017, the Appeals Council
concluded that Plaintiff was not disabled, which became the Commissioner’s final decision. (R.
at 1–9.) Plaintiff then timely commenced the instant action.
II.
A.

HEARING TESTIMONY1

Plaintiff’s Testimony

Plaintiff testified at the second administrative hearing on April 15, 2016, that she was five
feet, eight inches tall, and weighed 189 pounds. (R. at 125.) Plaintiff has her driver’s license
and drives to the doctor and to the store. (R. at 126.) Plaintiff testified that she had some falls in
2013 and 2014 and as recently as two weeks before the hearing in 2016. (R. at 127–28.)

1

The Court limits its analysis of the evidence and the administrative decision to the
issues raised in the Statement of Errors.
2

According to Plaintiff, she has some stability issues, particularly with her weaker left leg. (R. at
134.) She described difficulty with her legs, that they go to sleep and have a tingling feeling.
(R. at 137.)
Plaintiff testified that she was frustrated when working her home health care job because
of having “spells” and not being able to complete her job. (R. at 134.)
Plaintiff testified that, prior to June 30, 2104, she experienced one to two migraines a
month that lasted three to four days during which she would self-medicate, avoid driving, and
have visual disturbances. (R. at 137–38.) If her medication did not work, she would go to the
hospital and often received a shot. (R. at 138.)
According to Plaintiff, she passed out a couple of times a week in 2013 and 2014 as a
result of her syncope. (R. at 139–40.)
After surgery in 2013 and up to June 2014, Plaintiff experienced numbness in her legs
and lower back, testifying that she could walk a half of a block before having to stop and rest.
(R. at 140.) Plaintiff testified that she used a cane but there was no prescription for it; it was just
suggested she use it. (R. at 141–42.) She did not bring her cane to the hearing. (R. at 142.)
At the time of the hearing, Plaintiff rated her pain level at a nine out of ten but stated she
did not take her pain medication because it makes her sleepy. (R. at 143–44.) According to
Plaintiff, the heaviest thing she can lift comfortably is a gallon of milk. (R. at 144–45.)
B.

Vocational Expert Testimony

Richard Astrike testified as a vocational expert (“VE”) at the April 15, 2016,
administrative hearing. (R. at 146–52.) The VE testified that Plaintiff’s past jobs include
assembler, home health aide, press operator, forklift operator, and stocker. (R. at 146–50.) The
VE testified that a hypothetical individual of Plaintiff’s age, education, experience, and

3

vocational profile who retained the residual functional capacity (“RFC”)2 that ALJ Earnhart
ultimately assessed could perform the past work of only the press operator. (R. at 150.)
However, the VE further testified that the hypothetical individual could perform other jobs such
as garment sorter (approximately 350 jobs locally and 250,000 jobs nationally); inspector
(approximately 350 jobs locally and 120,000 jobs nationally); packager (approximately 350 jobs
locally and 180,000 jobs nationally). (R. at 150–51.)
III.
A.

MEDICAL RECORDS3

Physical Impairments
1.

Genesis HealthCare System

On June 10, 2013, Plaintiff presented to the emergency department, reporting that she has
little recollection of a syncopal episode, but that her daughters report that Plaintiff was walking
from the bedroom when she passed out. (R. at 382.) Plaintiff believed that she may have struck
her head because she had pain to the back of her head with a pain level of ten out of ten. (Id.)
Upon neurological examination, Plaintiff was positive for syncope and headaches but negative
for weakness, numbness, and all other systems reviewed. (Id.)
A MRI of Plaintiff’s lumbar spine dated July 18, 2013, revealed the following:
Findings: The study assumes the presence of 5 lumbar-type, non-rib bearing
vertebral bodies. The lumbar vertebral bodies are normal in height and marrow
signal. There is similar grade 1 retrolisthesis of L2 relative to L3 and L3 relative
to L4. No evidence of acute fracture. The conus terminates appropriately. Review
of the paraspinal soft tissues demonstrates no specific abnormality. The included
lower thoracic intervertebral disk spaces through the L1-2 level show no focal disk
herniation, significant central spinal canal, or neural foraminal narrowing.

A claimant’s RFC is an assessment of “the most [a claimant] can still do despite [his or
her] limitations.” 20 C.F.R. § 404.1545(a)(1).
3
Again, the Court limits its discussion of the evidence to issues raised in the Statement of
Errors and further refers to the evidence of record in its analysis below.
2

4

L2-3: There is a diffuse disk bulge with superimposed broad-based right
paracentral disk protrusion/extrusion, relatively similar in appearance to the
previous study. This slightly indents the right ventral lateral aspect of the thecal
sac, without significantly narrowing the central spinal canal. There is mild
narrowing of the right lateral recess. There is mild bilateral inferior neural
toraminal narrowing. The disk protrusion extends approximately 7 mm below the
disk space, similar to the prior study.
L3-4: There is a mild disk bulge, slightly flattening the ventral thecalsac. A small
posterior annular tear is noted. No focal disk herniation or significant central spinal
canal stenosis. Mild degenerative facet changes. There is similar mild inferior
neural foraminal narrowing on the right. No significant left neural foraminal
narrowing.
L4-5: Minimal disk bulge without focal disk herniation or significant central spinal
canal narrowing. There is similar mild bilateral neural foraminal narrowing
inferiorly. Mild degenerative facet changes.
L5-S1: No focal disk herniation, significant central spinal canal, or neural
foraminal narrowing. Mild degenerative facet changes.
(R. at 403.)
2.

Daryl R. Sybert, D.O. and Emily J. Yu, M.D.

On July 30, 2013, Plaintiff presented to Daryl R. Sybert, D.O., an orthopedic spine
surgeon, and Emily J. Yu, M.D., a physical medicine and rehabilitation physician, for her
evaluation of complaints of lower back pain radiating to bilateral lower extremities. (R. at 361.)
They noted that Plaintiff reported such pain beginning in April 2012 with progressively
worsening pain. (Id.) Drs. Sybert and Yu noted the following:
Review of systems is significant for intolerance to extremes of heat and cold,
sweating heavily at nighttime, lightheadedness, dizziness, balance issues, chest
pain, palpitations, shortness of breath, ankle swelling, appetite change, nausea,
constipation, headaches, depression, anxiety and nervous and trouble sleeping.
Otherwise her whole intake questionnaire is completely negative and I have
reviewed it that with her and that included a 14 system review.
(R. at 362.) Upon physical examination, Drs. Sybert and Yu noted that her range of motion of
the lumbar spine reflected flexion is 40 degrees, extension of 10 degrees, and lateral bending is

5

10 degrees all of that with axial lumbar pain. (Id.) Plaintiff had full range of motion of the
cervical spine with mild end of range of motion neck discomfort as well as moderate bilateral
lumbar paraspinal spasm and tenderness. (Id.) There was posterior superior iliac spine (“PSIS”)
tenderness, but no piriformis tenderness or upper quadrant tenderness. (Id.) Drs. Sybert and Yu
further noted that Plaintiff’s shoulder and hip range of motion were within normal limits with no
pain or instability on provocation bilaterally. (Id.) Drs. Sybert and Yu went on to note that
Plaintiff has had adequate trial of conservative measures and that a MRI and x-rays showed
multilevel degenerative changes with instability and disc degeneration and retrolisthesis at L2-L3
level and to a lesser degree at the L3-L4 level. (Id.) Drs. Sybert and Yu noted that Plaintiff
could no longer tolerate her symptoms and Dr. Sybert educated Plaintiff about the procedure of
lumbar laminectomy, fixation, and fusion L2-L3 and L3-L4 levels and Plaintiff indicated she
wanted to pursue this procedure. (R. at 362–63.)
On August 21, 2013, Plaintiff underwent a lumbar laminectomy, fixation, and fusion L2L3 and L3-L4 levels. (R. at 360.) On August 29, 2013, Plaintiff reported “pretty significant
back spasms.” (Id.) While her leg pain was better than it was before surgery, it was still present.
(Id.)
On July 17, 2014, Plaintiff presented to Dr. Sybert for an evaluation following her lumbar
fusion on August 21, 2013, for lumbar spinal stenosis, spondylolisthesis, and spondylosis. (R. at
633.) 4 Dr. Sybert noted Plaintiff’s back pain was “well-managed,” but that she had recurrent left

In her account of the factual background, Plaintiff also refers to additional symptoms in
July 2013 and a fall in May 2014. (ECF No. 8 at 3–4.) Plaintiff, however, provides no citations
to the record (see, e.g., id. at 4 (“PageID No. [left blank by Plaintiff]”)) and it is not immediately
apparent to the undersigned where this information appears in the voluminous record. See
Stankoski v. Comm’r of Social Sec., No. 2:11-cv-627, 2012 WL 3780333, at *3 (S.D. Ohio Aug.
31, 2012) (“[I]n the context of Social Security cases, it is a claimant’s duty to highlight the
portions of the record on which his or her argument is based.”) (citations omitted); Przytulski v.
4

6

lower extremity radiculopathy, which persisted through physical therapy, medical care, and
management. (Id.) Dr. Sybert assessed protracted course of left lower extremity radiculopathy
and gave Plaintiff an intramuscular injection of steroid at her request. (Id.) Dr. Sybert ordered a
MRI study for further clarification of the ongoing etiology of her radiculopathy, which had been
refractory to many months of conservative care and treatment, explaining that the MRI was
needed to develop a care plan moving forward. (Id.)
3.

Neurological Associates of SE Ohio, Inc.

On February 14, 2013, Plaintiff presented to Carrie A. Schilling, M.S.N., CNP, for a
follow up appointment. (R. at 439.) Nurse Schilling noted that Plaintiff reported that her
headaches were very severe and that Plaintiff went to the emergency room on two different
occasions. (Id.) Plaintiff reported that during the last episode she passed out at work with severe
pain. (Id.) However, Plaintiff further reported that since starting Atenolol/Chlorothiazide, her
headaches have been much better and she does not experience the pounding sensation she
previously had. (Id.) Nurse Schilling recommended that Plaintiff return to the clinic in six
months or sooner if additional issues arose. (Id.)
4.

Arrowhead Clinic

On October 1, 2013, Plaintiff presented for follow up, stating that her syncope had
“gotten better” and it was noted that she had no further syncopal episodes. (R. at 379.)5

Astrue, No. 1:11-cv-1518, 2012 WL 2025299, at *6 (N.D. Ohio June 5, 2012) (“The Court will
not cull through the record and speculate on which portion of the record a party relies; indeed,
the Court is not obligated to wade through and search the entire record for some specific facts
that might support a party’s claims.”).
5
Plaintiff cites to this record as evidence of her syncopal episodes as well as evidence
that she “suffers from migraines, two per week, lasting as long as 3-4 days at a time[.]” (ECF
No. 8 at 4 (citing “PageID No. 424”).) However, this record contains no reference to migraines.
(R. at 379 (which is also coded “PageID No. 424”).) Upon further review of the record, the
7

5.

William W. Chang, M.D.

In June 2016, William W. Chang, M.D. completed a physical capacity evaluation of
Plaintiff. (R. at 118–19.) Dr. Chang noted that Plaintiff could stand for two hours total and ten
to fifteen minutes at one time; could walk for two hours total and for ten minutes at one time;
and could sit for two hours total and for ten to fifteen minutes at one time. (R. at 118.) Dr.
Chang opined that Plaintiff could not lift any weight and that she could not bend, squat, crawl, or
climb ladders. (R. at 119.) Dr. Chang noted that Plaintiff used a cane most of the time and
indicated that her condition would likely deteriorate if placed under stress. (Id.)
B.

Mental Impairments
1.

Ohio Psychiatric Associates, Inc. and Avneet Hira, M.D.

Plaintiff was admitted to the hospital in June 2012 for suicidal ideation. (R. at 434.)
On December 24, 2013, Plaintiff presented to Avneet Hira, M.D., a psychiatrist, for
medication management. (R. at 818–19.)6 Dr. Hira noted that Plaintiff reported experiencing
more panic attacks in the last three to four weeks but that she denied any specific stress. (R. at
818.) Dr. Hira also noted that Plaintiff reported that that “[d]epression is doing ok overall[,]”
that her motivation and energy are low with some irritability. (Id.) She reported no manic
symptoms. (Id.) Upon mental status examination, Dr. Hira noted Plaintiff was cooperative and
spontaneous with good eye contact and was alert and oriented to time, place, and person. (Id.)

undersigned notes that the bates-stamped number 424 at the lower right corner of the page
(which is also coded as PageID No. 469) likewise does not refer to migraines. (R. at 424.)
6
Plaintiff refers to an examination by Dr. Hira in December 2013, but again omitted the
citation to the record. (See ECF No. 8 at 5 (citing “PageID No. [left blank by Plaintiff]”).)
Although the Court has no obligation to wade through the record and speculate as to which part
of the record upon which Plaintiff relies, see, e.g., Przytulski, 2012 WL 2025299, at *6, the
undersigned presumes that Plaintiff relies upon the examination by Dr. Hira on December 24,
2013.
8

Dr. Hira further noted that Plaintiff’s affect was restricted but she exhibited no agitation and he
noted no abnormal movements. (Id.) Plaintiff denied suicidal or homicidal thoughts and denied
delusions, ideas of reference, and any auditory, visual, tactile, or olfactory hallucinations. (Id.)
Dr. Hira noted that Plaintiff’s thought process was goal directed with no loosening of association
and that her attention, concentration, and memory were intact. (Id.) Dr. Hira assessed her
insight and judgment as fair. (Id.) Dr. Hira also assessed Plaintiff with a Global Assessment of
Functioning (“GAF”) of 55. (R. at 819.) Dr. Hira concluded that Plaintiff should continue
taking Luvox, Cymbalta, and Klonopin; that she increase her prescription for Trilafon; that she
change to Ambien; continue therapy and return in three months “per pt choice.” (Id.)
On January 20, 2015, Plaintiff presented to Dr. Hira with complaints of depression. (R.
at 807–09.) Dr. Hira noted that Plaintiff was to come back after one month but that he was
seeing her after three months. (R. at 807.) He noted that Plaintiff reported that she has been
shaking since an increase in her Trilafon and is still depressed and has high anxiety. (Id.)
Plaintiff also reported low motivation and energy, some panic attacks, but no manic symptoms.
(Id.) Dr. Hira noted that Plaintiff reported no adverse effects from medication and that her sleep
is good. (Id.) Upon mental status examination, Dr. Hira noted that Plaintiff was cooperative and
spontaneous with good eye contact and was alert and oriented to time, place, and person. (R. at
808.) Dr. Hira further noted that Plaintiff’s affect was restricted and her mood depressed but she
exhibited no agitation and he noted no abnormal movements. (Id.) Plaintiff denied suicidal or
homicidal thoughts and denied delusions, ideas of reference, and any auditory, visual, tactile, or
olfactory hallucinations. (Id.) Dr. Hira noted that Plaintiff’s thought process was goal directed
with no loosening of association and that her attention, concentration, and memory were intact.
(Id.) Dr. Hira assessed Plaintiff’s insight and judgment as fair. (Id.) Dr. Hira again assessed

9

Plaintiff with a GAF of 55. (Id.) Dr. Hira concluded that Plaintiff should continue taking
Luvox, Cymbalta, Klonopin, and Ambien; that she decrease her prescription for Trilafon; that
she continue taking Ambien; continue in therapy and return in in one month. (Id.)
C.

State agency review
1.

Physical RFC

Anne Prosperi, D.O., reviewed Plaintiff’s medical record on March 29, 2014. (R. at 180–
82.) She found Plaintiff to be partially credible, noting that the medical evidence did not support
standing or walking limitations. (R. at 180.) Dr. Prosperi determined Plaintiff was capable of
occasionally lifting and/or carrying up to twenty pounds and frequently lifting and/or carrying up
to ten pounds; able to stand and/or walk and sitting for about six hours in an eight-hour work
day; able to sit for about six hours in an eight-hour work day; and had no push and/or pull
limitations. (R. at 181.) Dr. Prosperi noted that Plaintiff was capable of frequently stooping,
kneeling, crouching, and crawling. (Id.) It was noted that this RFC was an adoption of the RFC
dated August 28, 2012, pursuant to “AR 98-4 (Drummond Ruling.)[.]” (R. at 181–82.)
Stephen Sutherland, M.D., reviewed Plaintiff’s medical record upon reconsideration on
August 13, 2014. (R. at 195–97.) Dr. Sutherland agreed with Dr. Prosperi’s physical RFC
assessment with the following additional postural limitations: Plaintiff was capable of
occasionally climbing ladders/ropes/scaffold. (R. at 195.) He found she was not limited in
balancing. (Id.) Dr. Sutherland also determined that Plaintiff had no environmental limitations
except that she should avoid concentrated exposure to hazards (machinery, heights, etc.). (R. at
196.)
2.

Mental RFC

10

On April 1, 2014, Aracelis Rivera, Psy.D., reviewed Plaintiff’s record and assessed her
mental condition. (R. at 182.) Dr. Rivera noted that the mental RFC “is an adoption of the ALJ
PRTF/MRFC dated 8/28/12” and “is being adopted under AR Ruling 98-4 (Drummond
Ruling.)[.]” (R. at 182.)
Paul Tangeman, Ph.D., reviewed Plaintiff’s medical record upon reconsideration on
August 21, 2014. (R. at 196–97.) Dr. Tangeman, like Dr. Rivera, concluded that there should be
no changes to Plaintiff’s prior mental limitations, adopting the “ALJ PRTF/MRFC dated
8/28/12” in accordance with Drummond. (R. at 197.)
IV.
A.

ADMINISTRATIVE DECISIONS

First Administrative Decision Dated August 28, 2012
On August 28, 2012, ALJ Foley issued his decision. (R. at 157–69.) At step one of the

sequential process,7 ALJ Foley found that Plaintiff met the insured status requirements through
December 31, 2013, and that she had not engaged in substantial gainful activity since her alleged
onset date of June 30, 2008. (R. at 159.)

7

Social Security Regulations require ALJs to resolve a disability claim through a fivestep sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a
dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five
questions:
1.
Is the claimant engaged in substantial gainful activity?
2.
Does the claimant suffer from one or more severe impairments?
3.
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments, 20 C.F.R. Subpart P, Appendix 1?
4.
Considering the claimant’s residual functional capacity, can the claimant
perform his or her past relevant work?
5.
Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?
See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir.
2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
11

At step two, ALJ Foley determined that Plaintiff had the following severe impairments:
fibromyalgia; obesity; degenerative joint disease of the spine and multiple joints; degenerative
disc disease of the lumbar spine; migraine headaches; sleep apnea; a depressive disorder; and an
anxiety disorder. (Id.)
ALJ Foley next found that, through the date last insured, Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 162–64.)
At step four of the sequential process, ALJ Foley set forth Plaintiff’s residual functional
capacity (“RFC”) as follows:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except: she is limited to frequent (defined as 1/3to 2/3 of a workday)
stooping, kneeling, crouching, and crawling; can understand, remember, and follow
instructions involving content that is basic and straightforward or moderately
complex, but she can only sustain routine and repetitive tasks consisting of one to
two step instructions; no contact with the public or in crowded co-worker
conditions; and no fast-paced or high production requirements.
(R. at 164.)
ALJ Foley concluded that Plaintiff was incapable of performing his past relevant work.
(R. at 167.) However, ALJ Foley went on to find that Plaintiff was capable of performing other
jobs existing in significant numbers in the national economy. (R. at 168–69.) He therefore
concluded that Plaintiff was not disabled under the Social Security Act. (R. at 169.)
B.

Second Administrative Decision Dated May 10, 2016
On May 10, 2016, ALJ Earnhart issued his decision. (R. at 204–20.) ALJ Earnhart first

noted that “[b]ecause there is sufficient new evidence of impairments not adjudicated at the prior
Administrative Law Judge decision of August 28, 2012 (Exhibit B-1A), and imposing more
significant functional limitations than were present at that time, those findings are not adopted as
12

a Drummond [v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997)] precedent.” (R. at 204; see
id. at n.1 (stating that where a claim arises under the same title of the Social Security Act as a
prior claim on which there has been a final decision by an ALJ or the Appeals Council, the
Social Security Administration “must adopt a finding of a claimant’s residual functional
capacity, a finding of the demands of a claimant’s past relevant work, or other finding required
under the applicable sequential evaluation process for determining disability, made in the final
decision” by the ALJ or the Appeals Council on the prior disability claim) (citing Dennard v.
Comm’r of Soc. Sec., 907 F.2d 598 (6th Cir. 1990); Drummond, 126 F.3d 837).)
At step one of the sequential evaluation process, ALJ Earnhart found that Plaintiff met
the insured status requirements through June 30, 2014, and that she had not engaged in
substantial gainful activity since his alleged onset date of August 29, 2012, through her date last
insured of June 30, 2014. (R. at 206.)
At step two, ALJ Earnhart determined that Plaintiff had the following severe
impairments: fibromyalgia; obesity; degenerative joint disease of multiple joints; degenerative
disc disease of the lumbar spine with a history of laminectomy and radiculopathy; migraine
headaches; chronic obstructive pulmonary disease; syncope; sleep apnea; a depressive disorder;
and an anxiety disorder. (R. at 207.)
ALJ Earnhart next found that, through the date last insured, Plaintiff did not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 14–17.) In so
concluding, the ALJ noted, inter alia, as follows:
Although there is no listing specifically for fibromyalgia, SSR 12-2p notes that
fibromyalgia can be identified as a medically determinable impairment if the
medical evidence shows:

13

1. A history of widespread pain (see section II.A. I.);
2. Either at least 11 positive tender points on physical examination (see diagram
below). The positive tender points must be found bilaterally (on the left and right
sides of the body) and both above and below the waist, or repeated manifestations
of six or more FM symptoms, signs, or co-occurring conditions, especially
manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking
unrefreshed, depression, anxiety disorder, or irritable bowel syndrome; and
3. Evidence that other disorders that could cause these repeated manifestations of
symptoms, signs, or co-occurring conditions were excluded (see section II.A.3.).
While there is no listing specific to fibromyalgia, this is a musculoskeletal
impairment and is best evaluated using Listing 1.00 et seq. However, there is no
evidence to demonstrate that the claimant’s fibromyalgia approaches the severity
of any impairment described in that, or any other, Listing. In particular, her
fibromyalgia has not resulted in an inability to ambulate effectively or an inability
to perform fine and gross movements effectively.
(R. at 209.)
At step four of the sequential process, ALJ Earnhart set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except that she could stand and/or
walk for up to four hours in an eight hour workday. The claimant could frequently
operate foot controls, and frequently tolerate exposure to extremes of temperature,
humidity, atmospheric conditions, and pulmonary irritants. She is limited to
occasional stooping, kneeling, crouching, crawling and climbing of ramps or stairs;
she could occasionally push, pull, and reach overhead with both upper extremities;
she should not climb ladders, ropes, or scaffolds, or be exposed to workplace
hazards such as dangerous machinery or unprotected heights. The claimant could
understand, remember, and follow instructions for simple routine and repetitive
tasks consisting of one to two step instructions. She should have no contact with
the public or in crowded co-worker conditions; no more than occasional changes in
the work setting; and, no fast-paced or high production requirements.
(R. at 211–12.)
In reaching this determination, ALJ Earnhart stated, inter alia, as follows:
The physical residual functional capacity set forth above generally gives great
weight to the opinion of the BDD medical experts, except that slightly more
conservative exertional, postural, and upper extremity restrictions have been
adopted to accommodate the claimant’s reported symptoms associated with her
back surgery, neck pain, and fibromyalgia.
14

(R. at 217.)
ALJ Earnhart further stated that
[b]ecause of her mental impairments and reports of irritability and panic attacks
associated with crowds and strangers, the claimant is limited to the performance of
simple, routine, repetitive tasks with no more than occasional changes in the work
setting, common the fast pace or high production requirements, no contact with the
general public, and no work in crowded coworker conditions.
(R. at 218.)
ALJ Earnhart went on to state that “[c]onsidering the medical evidence and opinions
discussed above, as well as the claimant’s activities, I find that the claimant’s subjective
complaints and alleged limitations are consistent with the objective evidence of record, although
she retains the capacity to perform work activities with the limitations set forth above.” (Id.)
ALJ Earnhart concluded that Plaintiff was unable to perform her past relevant work. (Id.)
However, ALJ Earnhart went on to find that Plaintiff is capable of performing other jobs existing
in significant numbers in the national economy. (R. at 219–20.) He therefore concluded that
Plaintiff was not disabled under the Social Security Act. (R. at 220.)
C.

Appeals Council Decision Dated December 12, 2017
On December 12, 2017, the Appeals Council issued its decision reviewing ALJ

Earnhart’s decision. (R. at 1–8.) The Appeals Council first noted as follows:
In additional [sic] to the [claimant’s] statement, the claimant submitted medical
records from Allwell Behavioral Health Services, dated December 9, 2016 through
August 18, 2017. The Administrative Law Judge decided the case through June 30,
2014, but should have adjudicated the case through June 30, 2015 (see below). This
additional evidence does not relate to the period at issue. Therefore, the Appeals
Council finds it does not affect the decision about whether the claimant was
disabled on or before June 30, 2015.
(R. at 4.) The Appeals Council went on to consider evidence post-dating ALJ Earnhart’s
incorrect date last insured, discussing evidence dated July 2014 through June 16, 2015. (R. at 5–
15

6.) The Appeals Council found that this evidence supported ALJ Earnhart’s RFC assessment
and that “[n]ew and material evidence supports [his] residual functional capacity finding being
more restrictive than that of” ALJ Foley’s finding. (R. at 6.)
The Appeals Council agreed that Plaintiff was unable to perform her past relevant work
and further agreed that Plaintiff is capable of performing other jobs existing in significant
numbers in the national economy. (R. at 6–7.) The Appeals Council therefore concluded that
Plaintiff was not disabled at any time from August 29, 2012, through June 30, 2015, the date last
insured. (R. at 7.)
V.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial 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, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. 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) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is

16

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA 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, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
VI.

ANALYSIS

Plaintiff advances four contentions of error. First, Plaintiff argues that ALJ Earnhart
erred when he failed to evaluate all the medical opinions of record. (ECF No. 8 at 6–8.) Plaintiff
next contends that ALJ Earnhart erred in his analysis of Plaintiff’s fibromyalgia pursuant to
Social Security Ruling (“SSR”) 12-2p. (Id. at 8–12.) Plaintiff also argues that ALJ Earnhart
relied on an incorrect date last insured and, therefore, substantial evidence does not support the
RFC. (Id. at 12–15.)8 Finally, Plaintiff contends that ALJ Earnhart’s decision should be
reversed and remanded because the Appeals Council failed to consider all the relevant evidence.
(Id. at 15–16.) The Court will address these contentions in turn.
A.

Evaluation of Medical Opinions of Record
Plaintiff argues that the ALJ erred when he failed to evaluate all the medical opinions of

record, specifically, the opinions of the state agency psychologists regarding Plaintiff’s mental
impairments. (ECF No. 8 at 6–8.)

The heading for this contention of error refers to ALJ Earnhart relying on an incorrect
alleged onset date (see id. at 12) but Plaintiff goes on to argue substantively in the body of the
Statement of Errors that ALJ Earnhart’s decision was based on an incorrect date last insured.
(Id. at 12–14.)
8

17

The ALJ must consider all medical opinions that he or she receives in evaluating a
claimant’s case. 20 C.F.R. § 416.927(c); see SSR 96–8p 1996 WL 374184, at *7 (July 2, 1996)
(“The RFC assessment must always consider and address medical source opinions.”). The
applicable regulations define medical opinions as “statements from physicians and psychologists
or other acceptable medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2).
Regardless of the source of a medical opinion, in weighing the opinion, the ALJ must
apply the factors set forth in 20 C.F.R. § 416.927(c), including the examining and treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole,
and the specialization of the source. In addition, the regulations provide that where, as here, the
ALJ does not assign controlling weight to the claimant’s treating physician, he or she must
explain the weight assigned to the opinions of the medical sources:
Unless a treating source’s opinion is given controlling weight, the administrative
law judge must explain in the decision the weight given to the opinions of a State
agency medical or psychological consultant or other program physician,
psychologist, or other medical specialist, as the administrative law judge must do
for any opinions from treating sources, nontreating sources, and other
nonexamining sources who do not work for us.
20 C.F.R. § 416.927(e)(2)(ii). Where an ALJ’s opinion satisfies the goal of § 416.927 and is
otherwise supported by substantial evidence, the failure to explicitly provide the weight assigned
is harmless. See, e.g., Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005)
(harmless error where the ALJ failed to mention or weigh the report of consultative neurologist
who only evaluated plaintiff once and was not a treating source); Dykes v. Barnhart, 112 F.
App’x 463, 467–69 (6th Cir. 2004) (failure to discuss or weigh opinion of consultative examiner
was harmless error); Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010)
18

(explaining that the treating physician rule “is not a procrustean bed, requiring an arbitrary
conformity at all times. If the ALJ’s opinion permits the claimant and a reviewing court a clear
understanding of the reasons for the weight given a treating physician’s opinion, strict
compliance with the rule may sometimes be excused.”).
Here, Plaintiff contends that “[t]he State agency psychologists opined that the prior ALJ’s
RFC [ALJ Foley’s RFC articulated in his decision dated August 28, 2012] should be adopted.”
(ECF No. 8 at 7.)9 As set forth above, ALJ Foley articulated the following RFC in his decision
dated August 28, 2012:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) except: she is limited to frequent (defined as 1/3to 2/3 of a workday)
stooping, kneeling, crouching, and crawling; can understand, remember, and follow
instructions involving content that is basic and straightforward or moderately
complex, but she can only sustain routine and repetitive tasks consisting of one to
two step instructions; no contact with the public or in crowded co-worker
conditions; and no fast-paced or high production requirements.
(R. at 164.)
The RFC set forth by ALJ Earnhart in his decision dated May 10, 2016, is as follows:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except that she could stand and/or
walk for up to four hours in an eight hour workday. The claimant could frequently
operate foot controls, and frequently tolerate exposure to extremes of temperature,
humidity, atmospheric conditions, and pulmonary irritants. She is limited to
occasional stooping, kneeling, crouching, crawling and climbing of ramps or stairs;
she could occasionally push, pull, and reach overhead with both upper extremities;
she should not climb ladders, ropes, or scaffolds, or be exposed to workplace
hazards such as dangerous machinery or unprotected heights. The claimant could
understand, remember, and follow instructions for simple routine and repetitive
tasks consisting of one to two step instructions. She should have no contact with
the public or in crowded co-worker conditions; no more than occasional changes in
the work setting; and, no fast-paced or high production requirements.

Plaintiff provides no citation to the record for these state agency psychologists’
opinions. (See id.)
9

19

(R. at 211–12.)
The United States Court of Appeals for the Sixth Circuit previously held that principles
of res judicata apply to both claimants and the Commissioner in Social Security cases.
Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 841–42 (6th Cir. 1997). The Drummond
Court specifically held that absent evidence of “changed circumstances” relating to a claimant’s
condition, “a subsequent ALJ is bound by the findings of a previous ALJ.” Id. at 842. Applying
this approach, the Drummond Court concluded that an ALJ was bound by a previous ALJ’s
determination that the claimant retained the RFC to perform sedentary work because evidence
did not indicate that the claimant’s condition had improved. Id. at 843.
Following Drummond, the Social Security Administration issued AR 98-4(6), which
provides, in pertinent part, as follows:
[W]hen adjudicating a subsequent disability claim with an unadjudicated period
arising under the same title of the Act as the prior claim, adjudicators must adopt
such a finding from the final decision by an ALJ or the Appeals Council on the
prior claim in determining whether the claimant is disabled with respect to the
unadjudicated period unless there is new and material evidence relating to such a
finding or there has been a change in the law, regulations or rulings affecting the
finding or the method for arriving at the finding.
AR 98-4(6), 1998 WL 283902, at *3 (June 1, 1998); see also Blankenship v. Comm’r of Soc.
Sec., 624 F. App’x 419, 425 (6th Cir. 2015) (“Read together, Drummond and Acquiescence
Ruling 98-4(6) clearly establish that a subsequent ALJ is bound by the legal and factual findings
of a prior ALJ unless the claimant presents new and material evidence that there has been either
a change in the law or a change in the claimant’s condition.”).
Thereafter, the Sixth Circuit clarified its decision in Drummond. See Earley v. Comm’r
of Soc. Sec., 893 F.3d 929 (6th Cir. 2018). The Sixth Circuit explained that principles of
“consistency between proceedings and finality with respect to resolved applications” protected
20

by Drummond “do not prevent the agency from giving a fresh look to a new application
containing new evidence or satisfying a new regulatory threshold that covers a new period of
alleged disability while being mindful of past rulings and the record in prior proceedings.” Id. at
931. The Court went on to specifically reject the Social Security Administration’s argument that
“[i]n reviewing a second application by the same individual, . . . the administrative law judge
should completely ignore earlier findings and applications” because “[f]resh review is not blind
review.” Id. at 934. In short, the Sixth Circuit therefore found that “it is fair for an
administrative law judge to take the view that, absent new and additional evidence, the first
administrative law judge’s findings are a legitimate, albeit not binding, consideration in
reviewing a second application” and that a “ALJ should have another opportunity to review the
application under the correct standard.” Id. at 933–34.
In this case, ALJ Earnhart explained that “[b]ecause there is sufficient new evidence of
impairments not adjudicated at the prior Administrative Law Judge decision of August 28, 2012
(Exhibit B-1A), and imposing more significant functional limitations than were present at that
time, those findings are not adopted as a Drummond [v. Comm’r of Soc. Sec., 126 F.3d 837 (6th
Cir. 1997)] precedent.” (R. at 204; see id. at n.1.) While ALJ Earnhart’s decision was issued
before Earley was decided, he nevertheless performed a “fresh review” of the new evidence and
was not bound ALJ Foley’s decision where there is new and material evidence. (R. at 204, 211–
18; see also Earley, 893 F.3d at 934; Blankenship, 624 F. App’x at 425.) Under these
circumstances, the Court must review ALJ Earnhart’s decision to determine if substantial
evidence supports that decision. Cf. Johnson v. Comm’r of Soc. Sec., No. 2:17-cv-13126, 2018
WL 6440897, at *15 (E.D. Mich. Oct. 22, 2018) (“Courts applying Earley to ALJ decisions
issued before that case have asked whether the ALJ, despite purporting to follow Drummond,

21

gave the new evidence a fresh look. If so, then the ALJ’s decision satisfied Earley; if not, then
remand was appropriate.”), adopted by, 2018 WL 6434778 (E.D. Mich. Dec. 7, 2018) (collecting
cases); see also Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 155 (6th Cir. 2009) (explaining
that a plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.”).
Here, Plaintiff acknowledges that the psychological limitations set forth in ALJ
Earnhart’s RFC “are slightly different and more restrictive[.]” (ECF No. 8 at 7.) However,
Plaintiff goes on to argue that ALJ Earnhart “impermissibly ‘played doctor’ by substituting h[is]
own opinion” because there was no discussion of the state agency psychologists’ opinions and
there is no other medical source opinion in the record. (Id. at 7–8 (citations omitted).)
Plaintiff’s argument is not well taken. “The burden of showing harmfulness is normally on the
party attacking an agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
(citations omitted). In Shinseki, the United States Supreme Court, noting congressional intent
that reviewing courts not become “impregnable citadels of technicality,” again “warned against
courts’ determining whether an error is harmless through the use of mandatory presumptions and
rigid rules rather than case-specific application of judgment, based upon examination of the
record.” Id. at 407–08 (internal citations omitted). Here, as Plaintiff concedes, ALJ Earnhart’s
RFC is “more restrictive” than ALJ Foley’s earlier RFC. (Id. at 8; see also R. 164, 211–12.)
Moreover, Plaintiff does not contend that ALJ Foley’s more restrictive RFC fails to
accommodate any mental impairment or that the RFC should be even more restrictive to
accommodate a mental impairment. (ECF No. 8 at 6–8.) Accordingly, remanding on this basis
would serve no purpose. Based on this record, ALJ Earnhart’s failure to specifically address the
state agency psychologists’ opinions constitutes, at most, harmless error. See Ferris v. Comm’r

22

of Soc. Sec., No. 5:16-cv-2459, 2017 WL 5187796, at *11 n.4 (N.D. Ohio Nov. 9, 2017)
(“Because his RFC determination was more restrictive than the opinions expressed by nonexamining state agency physicians, the ALJ’s departure from their opinions was, at most,
harmless error.”) (citing Shinseki, 556 U.S. at 409); Malone v. Comm’r of Soc. Sec., No. 1:16-cv1084, 2017 WL 9485649, at *14 (N.D. Ohio May 4, 2017) (“Because the ALJ found that
plaintiff’s RFC was more restricted than had the state-agency reviewing physicians, his
assignment of no weight to their opinions was harmless.”), adopted by 2017 WL 2821449 (N.D.
Ohio June 30, 2017); Hudson v. Comm’r of Soc. Sec., No. 16-10032, 2017 WL 1030216, at *5
(E.D. Mich. Feb. 22, 2017) (“Thus, even if the ALJ had erred by not tethering his RFC findings
to a particular medical opinion, remand would serve no purpose because plaintiff cannot point to
any competent evidence that a more-restrictive RFC was warranted.”), adopted by 2017 WL
1021072 (E.D. Mich. Mar. 16, 2017); cf. Washington v. Comm’r of Soc. Sec., No. 3:13-cv-785,
2017 WL 975349, at *11 (M.D. Tenn. Mar. 14, 2017) (“Where an ALJ in a subsequent decision
renders an RFC finding that is more restrictive than the ALJ in a prior decision, the claimant has
no cause for remand even if the subsequent ALJ failed to properly apply the preclusive effect of
the earlier decision, because any error works to the claimant’s benefit.”). It is therefore
RECOMMENDED that the Plaintiff’s first contention of error be OVERRULED.
B.

Fibromyalgia analysis
In her second contention of error, Plaintiff contends that the ALJ erred in his analysis of

her fibromyalgia as required by SSR 12-2p by failing to conduct a proper evaluation of her
impairment at step three and when assessing her RFC. (ECF No. 8 at 8–12.) Specifically,
Plaintiff argues that ALJ Earnhart erred at step three of the sequential analysis by not relying on
substantial evidence in the record and by failing to look to “Section 14.00 to determine if the

23

Plaintiff’s fibromyalgia medically equaled listing 14.09D (the listing for inflammatory arthritis).”
(Id. at 9–12.) Plaintiff also argues that ALJ Earnhart failed to include accommodations in the
RFC for Plaintiff’s chronic pain and resulting inability to perform substantial gainful activity on
a sustained basis without additional absences and time off task. (Id. at 9–10.) The undersigned
addresses these arguments in turn.
1.

Step three analysis

Fibromyalgia “is a complex medical condition characterized primarily by widespread
pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3
months.” SSR 12-2p, 2012 WL 3104869, at *2 (July 25, 2012). SSR 12-2p “provides guidance
on how we develop evidence to establish that a person has a medically determinable impairment
of fibromyalgia, and how we evaluate fibromyalgia in disability claims . . . . ” Id. at *1. A
claimant has fibromyalgia if: (1) there exists a history of widespread pain (in all quadrants of the
body) that has persisted for at least three months (the pain “may fluctuate in intensity and may
not always be present”); (2) at least eleven of eighteen possible positive tender points are found
on physical examination; and (3) evidence exists “that other disorders that could cause the
symptoms or signs were excluded” as the possible source of pain. Id. at *2–3. While a licensed
physician is the only acceptable medical source who can provide evidence of fibromyalgia, “[w]e
cannot rely upon the physician’s diagnosis alone.” Id. at *2. Fibromyalgia “should be analyzed
under the traditional five-step evaluation process used for analyzing other claims for SSI.”
Luukkonen v. Comm’r of Soc. Sec., 653 F. App’x 393, 399 (6th Cir. 2016) (citing SSR 12-2p).
SSR 12-2p instructs that fibromyalgia is not a listed impairment and, therefore, at step three “we
determine whether [fibromyalgia] medically equals a listing (for example, listing 14.09D in the

24

listing for inflammatory arthritis), or whether it medically equals a listing in combination with at
least one other medically determinable impairment.” SSR 12-2p, 2012 WL 3104869, at *6.
Here, ALJ Earnhart found that Plaintiff’s fibromyalgia, inter alia, was a severe
impairment but that it did not meet or medically equal any listed impairments. (R. at 14–17.) As
set forth above, ALJ Earnhart specifically considered Plaintiff’s fibromyalgia as follows:
While there is no listing specific to fibromyalgia, this is a musculoskeletal
impairment and is best evaluated using Listing 1.00 et seq. However, there is no
evidence to demonstrate that the claimant’s fibromyalgia approaches the severity
of any impairment described in that, or any other, Listing. In particular, her
fibromyalgia has not resulted in an inability to ambulate effectively or an inability
to perform fine and gross movements effectively.
(R. at 209.)
Plaintiff complains that this analysis is deficient, arguing that ALJ Earnhart “should have
reviewed the record to determine whether the severe impairment met or equaled a listed
impairment” instead of “merely restating the criteria for determining whether” Plaintiff’s
fibromyalgia was a medically determinable impairment and focused only briefly on the Listings
in Section 1.00. (ECF No. 8 at 9–11.) However, the United States Court of Appeals for the
Sixth Circuit has declined to require more than “minimal reasoning at step three.” Forrest v.
Comm’r of Soc. Sec., 591 F. App’x 359, 365 (6th Cir. 2014). Furthermore, at step three, the
regulations require only that the ALJ consider “the medical severity of your impairment(s),”
rather than the stricter “good reasons” requirement that governs evaluation of treating source
opinions. Id.; see § 404.1520(a)(4)(iii). Here, ALJ Earnhart directly addressed the severity issue
by considering Plaintiff’s ability to ambulate effectively and her ability to perform fine and gross
movements effectively. (R. at 209.) Plaintiff also asserts that her migraines and headaches were
symptoms, signs, or co-concurring conditions of her fibromyalgia (ECF No. 8 at 9), which ALJ

25

Earnhart also examined at length. (R. at 209–10.) Additionally, at step four, ALJ Earnhart
discussed the medical records and testimony that support his severity analysis. (R. at 212–18.)
Plaintiff nevertheless insists that the “record is replete with evidence that satisfies the
requirements of 12-2p[,]” such as a sleep disorder; co-occurring conditions of depression and
anxiety; muscle weakness/cramps; headaches/migraines; dizziness; balance and syncope; tender
points throughout the body; GERD, dyspnea; COPD; and symptoms of memory loss and lack of
concentration. (ECF No. 8 at 9 (citing dozens of pages in the record).) While many of these
records support a diagnosis of fibromyalgia, which ALJ Earnhart credited as a severe
impairment, they do not undermine his severity analysis at step three. For example, although
multiple records relate to Plaintiff’s migraines, those records also reveal that Plaintiff had a
steady or normal gait (R. at 408, 412, 414, 436–37, 503, 802, 808, 811, 814)10 and reflect no
complaints of neck, back, or joint pain or musculoskeletal pain or tenderness (R. at 442, 449,
462, 465, 474, 486). Plaintiff cites to symptoms of memory loss as support of the severity of her
fibromyalgia but many of the cited records (or pages from the same visit not specifically cited by
Plaintiff) reflect an intact or normal memory. (R. at 457, 503, 536, 802, 808, 811.) Plaintiff’s
cited records also reveal that her migraines improved with treatment. (R. at 450 (“She has good
resolution of her symptoms here”), 466 (“feeling much better”), 470 (“In the past, she has done
well with a combination of Reglan, Toradol and Benadryl” and, upon given this medication,
Plaintiff reported “her headache is down to a 5” and “states she is ready to go home”), 487
(headache resolved after receiving Dilaudid), 503 (“achieved a significant relief for her
migraine” upon receipt of medication).) Moreover, as discussed above, ALJ Earnhart separately

Plaintiff cites to the “PageID No.” located at the upper hand corner of each page of the
record. In keeping with the citations throughout this decision, however, the undersigned cites to
the Bates-stamped number appearing in the lower right-hand corner of each page.
10

26

considered Plaintiff’s migraines, which enjoys substantial support in the record. (Id.; R. at 209–
10.) Notably, “a diagnosis of fibromyalgia does not equate to a finding of disability or an
entitlement to benefits.” Stankoski v. Astrue, 532 F. App’x 614, 619 (6th Cir. 2013) (citing
Vance v. Comm’r of Soc. Sec., 260 F. App’x 801, 806 (6th Cir. 2008)); see also Kutscher v.
Comm’r of Soc. Sec., No. 1:13CV1389, 2014 WL 3895220, at *13 (N.D. Ohio Aug. 8, 2014)
(“However, the mere diagnosis of an impairment says nothing about the severity of that
impairment.”) (citing Foster v. Bowen, 853 F.2d 483, 489 (6th Cir. 1988)). In short, evidence
that Plaintiff had fibromyalgia does not establish that this condition met or medically equaled a
listed impairment at step three. See Thacker v. Social Sec. Admin., 93 F. App’x 725, 727–28 (6th
Cir. 2004) (“At step three of the evaluation process, it is the burden of the claimant to show that
he meets or equals the listed impairment.”); cf. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (2009) (“[I]f 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.’”) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
Plaintiff, however, goes on to argue that ALJ Earnhart’s analysis at step three is not
supported by substantial evidence due to his failure to look to “Section 14.00 to determine if the
Plaintiff’s fibromyalgia medically equaled listing 14.09D (the listing for inflammatory arthritis).”
(ECF No. 8 at 10.) Plaintiff must prove the following to satisfy Listing 14.09(D), Inflammatory
Arthritis:
Repeated manifestations of inflammatory arthritis, with at least two of the
constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary
weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.

27

3. Limitation in completing tasks in a timely manner due to deficiencies in
concentration, persistence, or pace.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.09(D).
As a preliminary matter, “even where a claimant suffers from fibromyalgia, an ALJ is not
required to consider Listing 14.09(D).” Boersma v. Comm’r of Soc. Sec., No. 2:17-cv-724, 2018
WL 1187805, at *6 (S.D. Ohio Mar. 7, 2018) (collecting cases), adopted by 2018 WL 1935509
(S.D. Ohio Apr. 24, 2018). Moreover, Plaintiff has not argued that the evidence proves that she
suffers from at least two “constitutional symptoms” and a marked level of limitations of
activities of daily living, in maintaining social functioning, or in completing tasks in a timely
manner due to deficiencies in concentration, persistence, or pace. (See generally ECF No. 8; see
also Colon-Lockhart v. Comm’r of Soc. Sec., No. 14-14336, 2015 WL 10553206, at *6 (E.D.
Mich. Dec. 29, 2015) (identifying the threshold requirements of Listing 14.09).) Notably, ALJ
Earnhart found only a mild limitation in daily living and moderate limitations in social
functioning and in completing tasks in a timely manner due to deficiencies in concentration,
persistence, or pace (see R. at 210), which Plaintiff did not challenge. (See generally ECF No.
8.) Plaintiff’s undeveloped argument therefore does not establish that she meets the symptoms
necessary for a finding of equaling Listing 14.09(D). See Dillery v. City of Sandusky, 398 F.3d
562, 569 (6th Cir. 2005) (“It is well-established that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”) (internal
quotation marks and citations omitted)) abrogated on other grounds as recognized by Anderson
v. City of Blue Ash, 798 F.3d 338, 357 n.1 (6th Cir. 2015). Finally, for the reasons previously
discussed, the undersigned concludes that ALJ Earnhart properly considered the severity of
Plaintiff’s fibromyalgia at step three and that substantial evidence supports his analysis. See id.;
Blakley, 581 F.3d at 406; Forrest, 591 F. App’x at 365.
28

2.

RFC

Plaintiff also argues that ALJ Earnhart failed to include accommodations in the RFC for
Plaintiff’s chronic pain and resulting inability to perform substantial gainful activity on a
sustained basis without additional absences and time off task. (ECF No. 8 at 9–10.) As with her
argument under Listing 14.09(D), however, Plaintiff simply asserts this argument in perfunctory
manner and does not develop her position with evidence of the record. See Dillery, 398 F.3d at
569. Plaintiff does not cite to any medical source opinion identifying any functional restrictions
stemming from her fibromyalgia or any additional evidence supporting her statements regarding
the debilitating effects of her fibromyalgia. See 20 C.F.R. § 416.945(a)(3) (stating that a
claimant is “responsible for providing the evidence” used to determine the RFC). Even if she
had developed this argument, the undersigned notes that ALJ Earnhart found that Plaintiff’s
statements regarding the intensity, persistence and limiting effects of her symptoms were not
entirely consistent with the medical evidence and other evidence in the record. (R. at 213–14.)
Plaintiff does not challenge this credibility determination (see generally ECF No. 8), which
enjoys substantial support in the record. (R. at 214–18.)
For all of these reasons, it is RECOMMENDED that the Plaintiff’s second contention of
error be OVERRULED.
C.

Incorrect date last insured and records of William W. Chang, M.D.11
Plaintiff also argues that ALJ Earnhart relied on an incorrect date last insured and,

therefore, substantial evidence does not support the RFC. (ECF No. 8 at 12–15.) Specifically,
Plaintiff argues that ALJ Earnhart’s decision was based on a date last insured of June 30, 2014,

As Plaintiff’s third and fourth contentions of error address the records of Dr. Chang, the
Court addresses the contentions together.
11

29

instead of the correct date of June 30 2015, leaving an unadjudicated period. (Id.)
A claimant must be “insured for disability insurance benefits” to be eligible for disability
insurance benefits. 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1); see also 20 C.F.R. § 404.315(a);
McAfee v. Comm’r of Soc. Sec., No. 1:16-cv-1417, 2018 WL 1516846, at *4 (W.D. Mich. Mar.
28, 2018) (“‘[I]nsured status is a requirement for an award of disability insurance benefits.”)
(quoting Garner v. Heckler, 745 F.2d 383, 390 (6th Cir. 1984)). “To have disability insured
status,” a claimant must be fully insured in that quarter and have at least twenty quarters of
coverage in the last forty-quarter period ending with that quarter. 20 C.F.R. § 404.130(b). The
expiration of a claimant’s insured status is often referred to as the “date last insured.”
“Courts have held that the use of an incorrect date last insured may be harmless when the
ALJ’s denial of disability benefits does not turn on a plaintiff’s date last insured, or the plaintiff
cannot show prejudice from the use of the incorrect date.” Ferguson v. Comm’r of Soc. Sec., No.
3:15 CV 2714, 2017 WL 9473077, at *11 (N.D. Ohio Jan. 25, 2017) (collecting cases), adopted
by 2017 WL 561834 (N.D. Ohio Feb. 13, 2017). The party attacking the agency’s decision has
the burden of establishing that the error was harmful. See Shinseki v. Sanders, 556 U.S. 396,
409–10 (2009).
In this case, Plaintiff argues that while the Appeals Council reviewed ALJ Earnhart’s
decision because he evaluated the record with the incorrect date last insured of June 20, 2015,
this evaluation does not resolve the error. (ECF No. 8 at 12–13.) Specifically, Plaintiff contends
that this evaluation is deficient as it relied on the state agency medical consultants who failed to
review the period between June 2014 and June 2015, and there were no other medical opinions

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regarding this period of time, in violation of SSR 96-6p. (Id. at 13–14.)12 Plaintiff therefore
contends that this error is not harmless. (Id.)
Plaintiff’s argument is not well taken. “There is no categorical requirement that the nontreating source’s opinion be based on a ‘complete’ or ‘more detailed and comprehensive’ case
record.” Helm v. Comm’r of Soc. Sec. Admin., 405 F. App’x 997, 1002 (6th Cir. 2011) (quoting
SSR 96-6p). Here, the Appeals Council considered records and treatment that occurred after the
state agency review. Specifically, the Appeals Council discussed treatment and test results
beginning in July 2014 through June 30, 2015, including lumbar spine imaging, lumbar spine
MRI, brain MRI, labs, and treatment records from Dr. Sybert and Robert J. Thompson, M.D. (R.
at 5–6.) The Appeals Council concluded that this evidence supported the RFC assessment of
ALJ Earnhart. (R. at 6.) The Appeals Council’s thorough review and conclusion are supported
by substantial evidence. See id; see also McGrew v. Comm’r of Soc. Sec., 343 F. App’x 26, 32
(6th Cir. 2009) (“It is clear from the ALJ’s decision, however, that he considered the medical
examinations that occurred after [the state agency physician’s] assessment . . . and took into
account any relevant changes in [claimant’s] condition.”); Taylor v. Comm’r of Soc. Sec. Admin.,
2015 WL 4730716, at *12 (N.D. Ohio 2015) (“Given that the ALJ sufficiently considered the

While Plaintiff refers to and discusses the state agency opinions, she does not cite to the
record where those opinions may be found. (See ECF No. 8 at 6, 8, 13.) As previously
discussed, citing to the record is critical and she again failed in her duty to do so. See Stankoski
v. Comm’r of Social Sec., No. 2:11-cv-627, 2012 WL 3780333, at *3 (S.D. Ohio Aug. 31, 2012)
(“[I]n the context of Social Security cases, it is a claimant’s duty to highlight the portions of the
record on which his or her argument is based.”) (citations omitted); Przytulski v. Astrue, No.
1:11-cv-1518, 2012 WL 2025299, at *6 (N.D. Ohio June 5, 2012) (“The Court will not cull
through the record and speculate on which portion of the record a party relies; indeed, the Court
is not obligated to wade through and search the entire record for some specific facts that might
support a party’s claims.”).
12

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relevant medical records that post-dated Dr. Congbalay’s opinion, the ALJ fulfilled her duties
and was entitled to rely on the state agency physician’s conclusions.”).
Plaintiff nevertheless insists that the Appeals Council’s decision is deficient because it
failed to consider, or even acknowledge, Dr. Chang’s medical source statement dated June 7,
2016. (ECF No. 8 at 14–16.) However, as Plaintiff concedes, this evidence is dated nearly one
year after Plaintiff’s date last insured of June 30, 2015. (Id. at 16; R. at 118–19.) Notably,
“[e]vidence of disability obtained after the expiration of insured status is generally of little
probative value.” Strong v. Soc. Sec. Admin., 88 F. App’x 841 (6th Cir. 2004). “Post-expiration
evidence must relate back to the claimant’s condition prior to the expiration of her date last
insured.” Wirth v. Comm’r of Soc. Sec., 87 F. App’x 478, 480 (6th Cir. 2003) (citing King v.
Sec’y of Health & Human Servs., 896 F.2d 204, 205–06 (6th Cir. 1990)). Here, while Plaintiff
contends that Dr. Chang’s statement relates back to the relevant time period (ECF No. 8 at 16),
nothing in that record so indicates. (R. at 118–19.) Because Dr. Chang’s statement post-dated
Plaintiff’s date last insured and did not relate back to the relevant time, the Appeals Council did
not err in failing to consider that statement.
Finally, to the extent that Plaintiff contends that the Appeals Council erred in failing to
consider evidence from December 9, 2016, through August 18, 2017 (ECF No. 8 at 15–16), that
argument is unavailing for the same reasons. This evidence was dated more than a year after
Plaintiff’s date last insured and she has not shown how it relates back to the relevant period.
(Id.) Moreover, as previously discussed, ALJ Earnhart and the Appeals Council adopted a RFC
that was more restrictive than ALJ Foley’s RFC and Plaintiff has not shown how this
determination prejudiced her. Cf. Shinseki, 556 U.S. at 409–10.

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Accordingly, it is RECOMMENDED that the Plaintiff’s third and fourth contentions of
error be OVERRULED.

VII.

CONCLUSION

In sum, from a review of the record as a whole, the undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is
RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED and that the
Commissioner’s decision be AFFIRMED.
VIII.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,

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appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

DATED: February 15, 2019

/s/ Elizabeth A. Preston Deavers______
ELIZABETH A. PRESTON DEAVERS
CHIEF UNITED STATES MAGISTRATE JUDGE

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