Mardis v. Commissioner of Social Security

Filing 21

ORDER adopting Report and Recommendations re 18 Report and Recommendations.. Signed by Judge James L. Graham on 5/23/2019. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Ashley M. Mardis,
Plaintiff,
v.

Case No. 2:18-cv-337

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Ashley M. Mardis brings this action under 42 U.S.C.
§405(g) for review of a final decision of the Commissioner of
Social Security (“Commissioner”) denying her applications for a
period

of

disability,

disability

supplemental security income.

insurance

benefits,

and

In a decision dated August 2, 2017,

the administrative law judge (“ALJ”) found that, through the last
insured date of December 31, 2012, plaintiff had severe impairments
consisting of diabetes mellitus, right shoulder degenerative joint
disease, obesity, and anxiety disorder, and further found that as
of October 13, 2014, the date of plaintiff’s application for
supplemental security income, plaintiff also had bilateral carpal
tunnel

syndrome,

PAGEID 56.

attention

deficit

disorder,

and

depression.

The ALJ found that plaintiff’s residual functional

capacity (“RFC”) would permit her to perform light work, with the
additional limitations that plaintiff could occasionally stoop,
kneel, crouch, crawl, and climb ramps and stairs, but could never
climb ladders, ropes or scaffolds.

PAGEID 60.

The ALJ decided

that plaintiff was capable of performing her past relevant work as
a packager and assembler, and that there were also other jobs in
the national economy which plaintiff could perform.

PAGEID 67-68.

The ALJ found that plaintiff was not disabled.

PAGEID 68.

On March 11, 2019, plaintiff filed objections to the February
25,

2019,

report

and

recommendation

of

the

magistrate

judge

recommending that the decision of the Commissioner be affirmed. The
Commissioner has requested that the court adopt the report and
recommendation.
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations

to

which

objection

is

made.”

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

28

U.S.C.

Upon review, the

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

28

U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”).

Put another way, a decision supported by

substantial evidence is not subject to reversal, even if the
reviewing court might arrive at a different conclusion.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

Mullen v.

Even if supported by

substantial evidence, however, “‘a decision of the Commissioner
will not be upheld where the [Commissioner] fails to follow its own

2

regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial right.’”

Rabbers

v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
II. Objections
Plaintiff’s

objections

address

the

ALJ’s

finding

that

plaintiff’s back and knee problems did not constitute medically
determinable impairments.

The magistrate judge found that the

ALJ’s finding was supported by substantial evidence, agreeing that
these

conditions

were

not

established

by

medical

evidence

consisting of signs, symptoms, and laboratory findings from an
acceptable medical source.

Doc. 18, p. 7.

The magistrate judge

also concluded that the evidence cited by plaintiff, including a
reference to plaintiff’s back and knee problems in a letter from
Dr. Matthew Inman, D.O., chiropractic treatment notes, and two
physical
position.

therapy

evaluations,

Doc. 18, pp. 9-10.

failed

to

support

plaintiff’s

The court agrees with the analysis

of the magistrate judge.
At step two of the evaluation process, the ALJ must determine
whether a claimant’s alleged impairments constitute “medically
determinable” impairments.

20 C.F.R. §404.1508.

A medically

determinable impairment must result from anatomical, physiological,
or psychological abnormalities which can be shown by medically
acceptable clinical and laboratory diagnostic techniques, and must
be established by medical evidence consisting of signs, symptoms,
and laboratory findings, and not by symptoms alone.

Kornecky v.

Comm’r of Soc. Sec., 167 F. App’x 496, 698 (6th Cir. 2006); 20
C.F.R. §404.1508.

3

A “symptom” consists of a claimant’s description of the
alleged impairment. 20 C.F.R. §404.1528(a). However, the ALJ need
not find credible a claimant’s subjective complaints or medical
assessments which are not supported by the medical evidence or the
record as a whole.

Walters v. Comm’r of Soc. Sec., 127 F.3d 525,

531 (6th Cir. 1997).

The impairment must have lasted or must be

expected to last for a continuous period of at least twelve months.
20 C.F.R. §404.1509; Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
474 (6th Cir. 2003)(plaintiff bears the burden of proving the
existence of a medically determinable impairment that meets the
twelve-month

durational

requirement).

Only

evidence

from

acceptable medical sources can establish a medically determinable
impairment.

20 C.F.R. §404.1513(a).

The ALJ explained why she found that plaintiff’s alleged back
and knee impairments were not medically determinable, as follows:
Finally, I find that the claimant’s alleged back and knee
impairments were not medically determinable during the
entire period of adjudication.... In September 2012, an
x-ray of the lumbar spine was unremarkable (6F/69). In
December 2012, the claimant was diagnosed with bilateral
low back pain, however, musculoskeletal examination was
normal (6F/7).
From November 2013 to February 2014,
examinations indicated no deformity or scoliosis of the
spine, full range of motion, intact sensation, and normal
strength (7F/3; 7F/10). From April to October 2014, the
claimant received chiropractic treatment (10F/1-21). In
September 2015, examination again demonstrated no
musculoskeletal deformity or scoliosis, intact sensation
and normal strength (17F/5).
Moreover, there is no
additional evidence of record demonstrating abnormal
objective findings, diagnoses, treatment or more than
minimal limitations in the claimant’s ability to perform
work-related activities with regard to these impairments.
PAGEID 57.
Plaintiff argues that the ALJ did not discuss Dr. Inman’s
4

November 9, 2016, letter.

That letter stated that plaintiff had

multiple medical problems, including “chondromalacia of bilateral
patella” and “chronic low back pain.”

PAGEID 1307.

The ALJ was

not required to discuss every piece of evidence in the record for
her decision to stand, see Thacker v. Comm’r of Soc. Sec., 99
F.App’x 661, 665 (6th Cir. 2004), and the ALJ’s failure to cite
specific evidence does not indicate that it was not considered, see
Simons v. Barnhart, 114 F.App’x 727, 733 (6th Cir. 2004). Here, it
is very likely that the ALJ considered Dr. Inman’s letter. The ALJ
specifically referred to Dr. Inman’s November, 2016, note excusing
plaintiff from work from November 9, 2016, through November 9,
2017.

See PAGEID 65; Exhibit 27F, PAGEID 1306.

Twice on this

excuse is the notation “see letter,” which was obviously intended
to incorporate by reference Dr. Inman’s November 9, 2016, letter.
The letter was included in the record as Exhibit 28F, sequentially
the next exhibit following the excuse.

See PAGEID 1307.

Plaintiff argues that Dr. Inman’s letter constitutes evidence
of her back and knee impairments from an acceptable medical source.
However, in assigning Dr. Inman’s work excuse little weight, the
ALJ observed that it was vague, did not provide for specific
workplace abilities or limitations, and offered an opinion on
plaintiff’s
Commissioner.

inability

to

PAGEID 65.

work,

an

issue

reserved

to

The ALJ stated:

While treating providers are not required to provide
function-by-function analysis, when they fail to offer
specific limitations, or even explanation or evidentiary
support for their opinion regarding disability, they miss
the opportunity to identify specific limits that the
factfinder can accept, reject, or evaluate.
In sum,
opinions limited to the ultimate issue in the case offer
very little substance for the factfinder to weigh in
light of the evidence in the record as a whole and,
5

the

therefore, have little persuasive value.
PAGEID 65.
The same can be said of the November 9, 2016, letter now
relied on by plaintiff.

The letter notes that plaintiff “has

multiple medical problems and is currently seeking SSDI for medical
disability.”
plaintiff’s

PAGEID 1307.
medical

The letter then summarily lists

problems,

including

“chondromalacia

bilateral patella” and “chronic law back pain.”

of

However, a mere

diagnosis is insufficient to establish a medically determinable
impairment.

See 20 C.F.R. §404.1508; Hill v. Comm’r of Soc. Sec.,

560 F.App’x 547, 551 (6th Cir. 2014)(disability is determined by
the functional limitations imposed by a condition, not the mere
diagnosis of it).

The letter includes no reasoned, clinical

discussion of how these conditions were diagnosed or supported by
medical examination observations, laboratory results or other
objective tests, and expresses no opinion or explanation as to how
these conditions would impact plaintiff’s ability to perform workrelated tasks.

See Griffeth v. Comm’r of Soc. Sec., 217 F. App’x

425, 426 (6th Cir. 2007)(regardless of whether an impairment is
severe or non-severe, limitations arising from the impairment must
be included in the RFC only if the impairment affects a claimant’s
capacity

to

work).

Instead,

the

plaintiff “needs assistance now.
you can.”

letter

simply

states

that

Please, I ask, help her any way

PAGEID 1307.

The ALJ noted that from April to October, 2014, plaintiff
received

chiropractic

treatment.

PAGEID

57.

chiropractor is not an “acceptable medical source.”
127 F.3d at 530.

A

treating

See Walters,

This chiropractic treatment, received over a
6

seven-month period, is insufficient to show that the symptoms noted
by the chiropractor, such as reduced range of motion, tenderness of
palpation, spasms, and muscle tension, lasted for a continuous
period of twelve months.
The record also includes two evaluations completed by Annette
Demos, a physical therapist, on May 4, 2016, and December 5, 2016.
PAGEID 1084, 1402. A physical therapist is also not an “acceptable
medical source.”

Noto v. Comm’r of Soc. Sec., 632 F. App’x 243,

249 (6th Cir. 2015).
medical

source,”

the

Even though Ms. Demos was not an “acceptable
ALJ

nonetheless

considered

therapy evaluations in formulating plaintiff’s RFC.

the

physical

The ALJ gave

partial weight to Ms. Demos’s May, 2016, opinion that plaintiff was
capable of performing at the light exertional level, which was
supported by evidence demonstrating good range of motion, intact
sensation, normal coordination and full strength.

PAGEID 64.

However, the ALJ noted that Ms. Demos only performed the functional
capacity

exams,

was

not

a

treating

plaintiff’s subjective complaints.

provider,

PAGEID 64.

and

relied

on

The ALJ assigned

little weight to the December, 2016, evaluation, noting that it was
inconsistent with the overall record evidence demonstrating normal
physical findings, good range of motion, intact sensation, normal
coordination, and full strength.

PAGEID 64-65.

The ALj concluded

that plaintiff’s subjective complaints were not consistent with her
daily activities (driving, shopping, cleaning, preparing meals,
caring for her daughter and pets, and walking two to three times
per week) and the medical evidence of record.

PAGEID 61-63.

Plaintiff suggests that the evidence from Dr. Inman, Ms.
Demos, and plaintiff’s treating chiropractor must be considered

7

together and given more weight. Even if this evidence is viewed as
a package, this approach would not eliminate the deficiencies noted
by the ALJ.

Further, the fact that the ALJ addressed specific

evidence separately in turn in her decision does not mean that she
did not consider the cumulative effect of this evidence.

Rather,

the ALJ formulated plaintiff’s RFC “[a]fter careful consideration
of the entire record,” having “considered all symptoms and the
extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence,”
but found that plaintiff’s claim “is not supported by the overall
evidence of record[.]”

PAGEID 60, 61.

The ALJ is not required to consider an impairment which is
not medically determinable in formulating the RFC. Jones v. Comm’r
of Soc. Sec., No. 3:15-CV-00428, 2017 WL 540923 at *6 (S.D. Ohio
Feb. 10, 2017).

However, even assuming that the ALJ erred in

failing to find that plaintiff’s back and knee problems constituted
medically determinable impairments, any error was harmless because
the ALJ considered evidence of plaintiff’s back and knee problems,
including plaintiff’s hearing testimony and the reports of Ms.
Demos, in formulating plaintiff’s RFC. Cf. Nejat v. Comm’r of Soc.
Sec., 359 F. App’x 574, 577 (6th Cir. 2009)(failure to categorize
an impairment as severe at step two is not prejudicial error if the
ALJ found other severe impairments at step two and considered all
of the claimant’s impairments, including the nonsevere impairments,
in the remaining steps of the disability determination).

See

PAGEID 61 (discussing plaintiff’s testimony concerning her back and
knee problems, and concluding that the reported symptoms were not
entirely consistent with medical and other evidence); PAGEID 63-64

8

(explaining

the

weight

assigned

to

the

functional

capacity

evaluations of Ms. Demos).
For the foregoing reasons, plaintiff’s objections are not well
taken.
III. Conclusion
The court concludes that the ALJ’s finding of nondisability is
supported by substantial evidence.
(Doc. 19) are denied.

The plaintiff’s objections

The court adopts and affirms the magistrate

judge’s report and recommendation (Doc. 18).

The Commissioner’s

decision is affirmed, and this action is dismissed.
shall

enter

final

judgment

affirming

the

The clerk

decision

Commissioner.
It is so ordered.

Date: May 23, 2019

s/James L. Graham
James L. Graham
United States District Judge

9

of

the