Wilson v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Bonnie M. Wilson was under a "disability" within the meaning of the Social Security Act; this matter be REMAN DED to the Social Security Administration for further consideration consistent with this Report and Recommendations, and any decision adopting this Report and Recommendations; and the case be terminated on the Court's docket. Objections to R&R due by 12/2/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 11/15/2016. (lek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BONNIE M. WILSON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-81
:
: District Judge Thomas M. Rose
: Chief Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Bonnie M. Wilson applied for a period of disability, Disability Insurance

Benefits, and Supplemental Security Income on July 12, 2013. She asserted that she
could no longer work a substantial paid job due to degenerative disc disease,
fibromyalgia, obesity, irritable bowel syndrome (IBS), and anxiety disorder. Her
applications, medical records, and other evidence proceeded to a hearing before
Administrative Law Judge (ALJ) Theodore W. Grippo who later issued a written
decision. The result of his decision was the denial of her applications based on his
central conclusion that she was not under a “disability” as defined in the Social Security
Act. Plaintiff brings the present case challenging ALJ Grippo’s non-disability decision.

1

Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the
Commissioner’s Memorandum in Opposition (Doc. #10), Plaintiff’s Reply (Doc. #11),
the administrative record (Doc. #6), and the record as a whole.
Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Grippo’s nondisability decision.
II.

Background
Plaintiff asserts that she has been under a disability since March 1, 2009. She was

fifty years old at the time she filed her applications and was therefore considered a person
“closely approaching advanced age” under Social Security Regulations. See 20 C.F.R. §
404.1563(d). She has at least a high school education.
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Grippo that she is unable to work
because it is “too painful.” Id. at 70. She has both fibromyalgia and lower chronic back
pain. Id. Her back pain limits her ability to stand and walk. Id. After walking three
blocks to the hearing, her hips and shins began to burn, and her back hurt. Id. She was
“a little bit” comfortable sitting in the chair at the hearing, but she said that eventually she
has to stand up. Id. at 71. She is most comfortable when she is lying down. Id. Bending
over is very painful, and she tries not to lift things. Id. at 71-72. She can lift a gallon of
milk or a twelve pack of pop but cannot lift a twenty-four pack. Id. at 72. She currently
takes Methadone and Percocet for pain. Id. She is prescribed Methadone as a substitute
for OxyContin because her insurance will not pay for OxyContin. Id. at 73.
2

Plaintiff’s fibromyalgia affects her arms and legs. Id. For example, she is unable
to “vacuum in [a] continuous motion” because “the same motion for a long time” causes
her more pain. Id. Additionally, it causes the muscles in her calves and forearms to “grip
up,” and “it feels like you’re having a Charley horse constantly.” Id. at 73-74. She is
able to take a small bag of garbage to the dumpster and clean dishes for approximately
ten minutes at a time. Id. at 74. If she had thirty-minutes worth of dishes to clean, she
would have to wash half of them, take a break to sit down, and then finish. Id.
Her pain stops her from being active and playing sports. Id. at 78. For example,
she cannot bowl or mow a yard. Id. She also gets distracted and frustrated more easily,
and “it’s brought down the quality of [her] life tremendously.” Id. Generally, she can
only sit or stand for thirty minutes before having to take a break to lie down. Id. at 79.
Plaintiff’s IBS also interferes with her ability to work. Id. at 77. She has
medication that stops her cramping and is supposed to stop diarrhea as well. Id.
However, she never knows how many doses she will have to take or how long each
episode will last. Id. She generally experiences these episodes two to three times per
month. Id.
Plaintiff also struggles with depression and anxiety. Id. at 75. She tends to shy
away from groups of people, and attending new things makes her shake and sick to her
stomach. Id. Her mental health problems have “stayed about the same” since 2001, and
they do not “get in the way” when she is working. Id. at 76.
When asked by the ALJ if she has a problem with drugs, Plaintiff responded that
she does not. Id. at 84. He noted that “[t]here were some indications in [her] file that
3

[she does].” Id. She accidentally overdosed in November 2013. Id. at 84-85. The ALJ
asked if she gave seventy pills away to a friend, tried to fill her Methadone prescription
early, or told her doctor that her Percocet was flushed down the toilet. Id. at 85. She
responded that she did not remember. Id. In addition, she does not remember becoming
hostile, cursing, and throwing things in the emergency room because they would not give
her narcotics, but her mom and roommate told her she did. Id. at 86. Additionally,
between 2003 and 2008, “I had a problem with people, I’ve let them stay with me and
then I’d wake up and my medication would be gone.” Id. at 85. She told her doctor
about the theft and also reported that her medication was stolen out of her glovebox in
2013. Id. at 85-86.
Plaintiff last worked as a cashier at Dollar General. Id. at 68. After working for
approximately eighteen months, she was let go on March 3, 2009 because of her
attendance. Id. She called off worked once or twice per month due to IBS. Id. In 2007,
she worked as a cab driver for railroad employees. Id. at 81. She was let go due to her
attendance problem. Id. at 81-82. Before that, she worked as a pharmacy technician for
five years. Id. at 69. She was let go on December 15, 2005 for attendance problems. Id.
Plaintiff lives in a friend’s apartment. Id. at 82. She does not have to pay rent. Id.
at 83. Her mother helps her pay the cable bill and other things. Id. She has a driver’s
license but not a car. Id. She drives her friend’s car. Id. at 83-84. She had two children,
but one passed away six years before the ALJ’s hearing. Id. at 82.
B.

Vocational Expert’s Testimony

The ALJ posed the following hypothetical to Denise Waddell, a vocational expert:
4

[P]lease assume a hypothetical individual of the same age, education, and
vocational background as those of the claimant, and assume that such an
individual is capable of performing light work with the following
limitations. She can never climb ladders, ropes, or scaffolds. And she
would be limited to frequent stooping, kneeling, crouching, and crawling.
… The individual would be limited to work that is simple, routine, and
repetitive; with no requirement for extended concentration or attention;
with no fast pace or production quotas; with only occasional superficial
interaction with coworkers and supervisors and none with the general
public; and with changes that are infrequent and easily explained. …
[W]ould such an individual be able to do any of the past work of the
claimant?
Id. at 87. Ms. Waddell responded that this hypothetical person could not perform
Plaintiff’s past work. Id. However, there is other work that “such an individual” can
perform that exists in significant numbers in the regional or national economy. Id. at 8788. For example, there are, according to Ms. Waddell, 1,350 positions as a folding
machine operator in Ohio (46,300 nationally); 960 as a collator operator in Ohio (36,300
nationally); and 1,200 as a retail price marker in Ohio (92,400 nationally). Id. at 88.
Plaintiff’s attorney also posed several questions to Ms. Waddell. She testified that
there are no positions above sedentary for a person who can only stand and walk for two
hours and sit for six hours in a workday. Id. Further, Plaintiff does not have any job
skills that would transfer to sedentary jobs. Id. Generally, employers tolerate one day of
absence per month. Id. at 89. Finally, her attorney asked, “Is what [Plaintiff] described
as far as [] holding a job for maybe a year or so, but then consistent absenteeism coming
up and then being released, is that consistent with the way that kind of thing works as far
as being released due to absenteeism at unskilled light or sedentary jobs?” Id. She
responded that it was. Id.
5

C.

Medical Opinions
i. Damian M. Danopulos, M.D.

Dr. Danopulos examined Plaintiff on August 19, 2011. Id. at 363. Plaintiff
reported that she always feels pain in her shoulders, hips, and knees. Id. He noted that
her shoulders, hips, and knees revealed painful motions, and her left shoulder, hips, and
knees showed slightly restricted motions. Id. at 365. In addition, she told Dr. Danopulos
that she “experiences constant and continuous low back pain, which on a scale between
[one and ten] is always a six, but may intensify on occasion.” Id. at 364. He noted that
her mid-dorsal to lumbosacral spine was painful pressure. Id. at 366. Her lumbar-spine
motions were restricted and painful, and squatting and rising from squatting triggered
lumbar-spine pain. Id.
His “objective findings were: 1) Rule out left should early arthritic changes, 2)
Bilateral hip arthralgias, 3) Bilateral knee arthralgias, 4) Rule out mild degree
lumbosacral spine arthritic changes, 5) History of IBS not affecting her body weight, 6)
Exogenous versus morbid obesity (mostly morbid obesity), and 7) Depression.” Id. at
367. He concluded, “[h]er ability to do any work-related activities is affected from her
rule out left shoulder and lumbar spine arthritic changes. Her IBS and overweight are
additional problems.” Id.
ii. Jerry E. Flexman, Ph.D.
On September 7, 2011, psychologist Dr. Flexman evaluated Plaintiff. Id. at 374.
He noted that she was able to take care of all her activities of daily living on her own. Id.
at 375. More specifically, she dusts, sweeps, cleans, cleans dishes, and does laundry. Id.
6

She goes to the store twice per week, enjoys going out to eat and to the library, and visits
and talks to her friends and family. Id. Her physical characteristics were within normal
limits, but her posture was tense and he observed a gait disturbance with limping. Id. at
376. “Signs of anxiety were not noted.” Id. She reported excessive worry and concerns
about fibromyalgia and multiple physical complaints. Id. at 377.
Dr. Flexman noted that she was able to accurately follow instructions during the
exam, and her intellectual level of functioning was “minimally within the average range.”
Id. at 379. She maintained focus and attention during the sixty to ninety minute
interview; she did not appear to be distracted by other environmental sounds; and her
work history indicated she was able to maintain focus and attention at previous jobs. Id.
He opined that she “may not have problems in relation to others in the workplace.” Id.
Further, “[w]ork pressures would not be expected to significantly increase psychological
problems.” Id. Dr. Flexman diagnosed her with depression, not otherwise specified, and
assigned a current Global Assessment of Functioning (GAF) score of sixty-five. Id. at
378.
iii. Donald J. Kramer, Ph.D.
Dr. Kramer evaluated Plaintiff on August 27, 2013. Id. at 410. She reported that
her main work limitations are fibromyalgia, chronic back pain, and IBS. Id. However,
she also has mood swings, anxiety, and panic attacks. Id. at 410-11. She has been
anxious since she was a child, but her emotional problems became much worse when her
son passed away in 2008. Id. at 411. She reported that she has lost many jobs because of
attendance issues. Id. Although she primarily called off work for her physical problems,
7

she also occasionally called off because of anxiety and panic attacks. Id. Her daily
activities include watching television and taking a short walk “so she does not stiffen up
due to her fibromyalgia.” Id. at 412. She also visits her son and grandson, reads, and
spends time with the friend she lives with. Id. She cannot do laundry or cook because of
her physical limitations, and she does not like to leave the house and go places because of
her social anxiety, panic attacks, and physical limitations. Id.
Dr. Kramer noted that “[h]er affect was quite anxious. She was fidgety and
restless and shook frequently…. She also comes across as being depressed and sad and
was tearful off and on in [the] examination.” Id. Additionally, Plaintiff “was
spontaneous to the point of being somewhat overproductive and rapid and pressured in
her speech. She frequently had to be slowed down and questions had to be re-asked of
her and she had to be redirected.” Id. He diagnosed her with panic disorder with
agoraphobia, generalized anxiety disorder, and bipolar disorder, mixed. Id. at 413-14.
He assigned her a symptom, functional, and overall GAF score of fifty-four. Id. at 414.
Dr. Kramer opined that she appears to have the intellectual ability to perform
simple tasks, but her attention, concentration, persistence, and pace were “a little weak.”
Id. She reported that although her overall work performance has been adequate in the
past, her anxiety has gotten worse since she was last employed. Id. at 414-15. He also
noted that she was pleasant and cooperative in the interview, but she was also trembling,
shaking, and very nervous. Id. at 415. She also reported being socially avoidant and
anxious, and she has difficulty going to public places by herself. Id. Dr. Kramer opined
that her “ego strength and coping skills appear to be rather weak.” Id. Additionally,
8

“[o]verall, she displays a high level of emotional distress and although she believes that
her main work limitations are physical in nature, she does come across as having limited
coping skills….” Id.
iv. Cynthia Waggoner, Psy.D., & Bonnie Katz, Ph.D.
Dr. Waggoner reviewed Plaintiff’s records on September 6, 2013. Id. at 114-28.
She opined that Plaintiff has four severe impairments: disorders of the back—discogenic
and degenerative; fibromyalgia; anxiety disorders; and affective disorders. Id. at 121.
She has a mild restriction of activities of daily living; moderate difficulties in maintaining
social functioning; moderate difficulties in maintaining concentration, persistence, and
pace; and no repeated episodes of decompensation. Id. at 122. She is moderately limited
in the ability to carry out detailed instructions; maintain attention and concentration for
extended periods; and complete a normal workday and workweek without interruptions
from psychologically-based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. Id. at 125. She is also moderately
limited in the ability to interact appropriately with the general public and respond
appropriately to changes in the work setting. Id. at 126.
Dr. Katz reviewed Plaintiff’s records on December 21, 2013, and reached the
same conclusions as Dr. Waggoner. Id. at 153-58. She added that Plaintiff was
moderately limited in the ability to get along with coworkers or peers without distracting
them or exhibiting behavioral extremes. Id. at 158.

9

v. Gerald Klyop, M.D., & Edmond Gardner, M.D.
Dr. Klyop reviewed Plaintiff’s records on September 6, 2013. Id. at 123-24. He
opined that she could occasionally lift and/or carry twenty pounds and frequently lift
and/or carry ten pounds. Id. at 123. She can stand and/or walk for six hours in an eighthour day, and sit for six hours. Id. at 123-24. She can frequently stoop, kneel, crouch,
and crawl but never climb ladders, ropes, or scaffolds. Id. at 124. He concluded that she
was not disabled. Id. at 128. On December 31, 2013, Dr. Gardner reviewed her records,
and reached the same conclusions as Dr. Klyop. Id. at 155-56, 160.
III.

Standard of Review
The Social Security Administration provides Disability Insurance Benefits and

Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 423(a)(1), 1382(a). The term “disability” – as defined by the Social Security
Act – has specialized meaning of limited scope. It encompasses “any medically
determinable physical or mental impairment” that precludes an applicant from
performing a significant paid job – i.e., “substantial gainful activity,” in Social Security
lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
10

disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met – that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance….” Rogers, 486 F.3d at 241 (citations
and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry – reviewing the correctness of the ALJ’s legal
criteria – may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘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 in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Grippo to evaluate the evidence connected to

Plaintiff’s application for benefits. He did so by considering each of the five-sequential

11

steps set forth in the Social Security Regulations. See 20 C.F.R. §§ 404.1520, 416.920.2
He reached the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since
March 1, 2009.

Step 2:

She has the severe impairments of degenerative disc disease,
fibromyalgia, obesity, and anxiety disorder.

Step 3:

She does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

Her residual functional capacity, or the most she could do in a work
setting despite her impairments, see Howard v. Comm’r of Soc. Sec.,
276 F.3d 235, 239 (6th Cir. 2002), consists of “light work… except
that the claimant can never climb ladders, ropes, and scaffolds and she
is limited to frequent stooping, kneeling, crouching, and crawling.
The claimant is limited to work that is simple, routine, and repetitive,
with no requirement for extended concentration or attention, and with
no fast pace or production quotas, with only occasional superficial
interaction with co-workers and supervisors, and none with the
general public, and with changes that are infrequent and easily
explained.”

Step 4:

She is unable to perform any of her past relevant work.

Step 5:

She could perform a significant number of jobs that exist in the
national economy.

(Doc. #6, PageID #s 45-58). These main findings led ALJ Grippo to ultimately conclude
that Plaintiff was not under a benefits-qualifying disability. Id. at 58.
The ALJ also noted that Plaintiff previously applied for benefits, and on February
24, 2011, ALJ Howard K. Treblin found that she was not disabled. Id. at 45. ALJ
2

The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full
knowledge of the corresponding Supplemental Security Income Regulations.

12

Grippo did not adopt the previous residual functional capacity determination because the
“updated records contain new and material evidence that requires different limitations,
including that she has developed degenerative disc disease.” Id.; see Drummond v.
Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997); Acquiescence Rule 98-4(6), 1998 WL
283902 (Soc. Sec. Admin. June 1, 1998).
V.

Discussion
Plaintiff contends that the ALJ’s residual functional capacity (RFC) assessment is

not based on substantial evidence because he mischaracterized Dr. Kramer’s opinions and
failed to account for all the limitations provided by the State agency psychologists. She
also argues that the ALJ failed to consider or properly evaluate several of her physical
impairments. The Commissioner maintains that substantial evidence supports both the
ALJ’s evaluation of the medical source opinions and his determination that Plaintiff
could perform a limited range of light work activities. The Commissioner also asserts
that the ALJ properly evaluated her impairments.
A.

State Psychologists’ Opinions

The ALJ also gave the State agency record-reviewing psychologists’ opinions
great weight. (Doc. #6, PageID #55). He found that their opinions are “supported by the
evaluation and the report of the mental consultative examiner, Dr. Kramer.” Id. He also
noted that they are “highly qualified… psychologists who are experts in the Social
Security disability programs….” Id.
Plaintiff asserts the ALJ omitted a significant portion of the state agency
psychologists’ opinions when constructing the RFC. (Doc. #7, PageID #710).
13

Specifically, Dr. Katz opined that she “is capable of simple tasks not requiring her to
sustain close consistent [attention and concentration] over an extended period, nor to
meet fast-paced performance demands.”3 (Doc. #6, PageID #157). Plaintiff
acknowledges that the ALJ’s assessment of her RFC accounts for simple tasks with no
requirements for extended concentration or attention. (Doc. #7, PageID #711). But she
contends, “that completely ignores the need for a working environment that does not
require close consistent attention and concentration. Nor does the ALJ explain why these
limitations were not accepted.” Id.
Plaintiff relies on the court’s reasoning in Benton v. Commissioner of Social
Security, “[T]here seem[s] to be two components to having moderate problems in
concentration. One deals with the frequency of how often one cannot concentrate. The
other deals with the level of sophistication or intensity of the work that can be done with
the concentration limitation.” 511 F.Supp.2d 842, 846 (E.D. Mich. 2007) (internal
quotation marks omitted). The court found that the ALJ’s hypothetical did not address
the frequency of how often the person would be unable to concentrate, but it did address
the sophistication or intensity of the work that can be done “by limiting Plaintiff to only
simple, repetitive tasks.” Id. at 846.
According to Plaintiff, “the ALJ may have accounted for the frequency by
incorporating the restriction of no requirement for extended attention and concentration,”
but “he failed to describe the level of intensity by including the need to avoid work that
3

Although Plaintiff refers to the State psychologists’ opinions, in response to the same question, Dr.
Waggoner only noted that she is limited to simple tasks.” Id. at 125.

14

also required close and consistent attention.” (Doc. #7, PageID #711). Plaintiff’s
reliance on Benton is misplaced. She attempts to divide “simple tasks not requiring her to
sustain close consistent [attention/concentration] over an extended period” into two
separate limitations: (1) “simple tasks with no requirements for extended concentration
or attention;” and (2), “a working environment that does not require close consistent
attention and concentration.” Id. However, her interpretation is incorrect. Dr. Katz does
not opine that Plaintiff cannot sustain any close consistent attention/concentration; she
only indicates that she cannot do so over an extended period.
This is further supported by Dr. Katz and Dr. Waggoner’s opinion that Plaintiff’s
ability to carry out very short and simple instructions is not significantly limited, but her
abilities to carry out detailed instructions and maintain attention and concentration for
extended periods are moderately limited. In addition, the ALJ specifically
acknowledged, “Dr. Katz opined the claimant was capable of simple tasks not requiring
her to sustain close consistent attention/concentration over an extended period.” (Doc.
#6, PageID #54) (emphasis added). The ALJ’s assessment of Plaintiff’s RFC accounts
for these limitations. Specifically, it limits her to work that is simple, routine, and
repetitive, with no requirement for extended concentration or attention, and no
requirement for fast pace or production quotas.
B.

Additional Physical Impairments

Plaintiff asserts, “The ALJ either did not adequately explain the impact of the
impairment on the residual functional capacity, did not properly evaluate the impairment
as prescribed by Social Security Rules, or outright ignored a well-documented
15

impairment.” (Doc. #7, PageID #712). Specifically, she contends that the ALJ ignored
her IBS completely, only making one reference to it in his entire decision.4 Id. at 715.
Plaintiff’s medical records establish IBS as a medically determinable impairment.
For example, Dr. Danopulos noted that she has suffered from IBS for the past five years.
(Doc. #6, PageID #364). He also indicated that “[h]er IBS and weight are additional
problems.” Id. Additionally, her primary-care physician, Dr. Jewel Stevens, notes as
early as March 2009 that she complained of stomach pain, and Dr. Stevens prescribed
Lomotil, a medication used to treat diarrhea. Id. at 674; see U.S. Nat’l Library of Med.,
Drugs, Herbs and Supplements – Diphenoxylate, MEDLINE PLUS,
https://medlineplus.gov/druginfo/meds/a601045.html (last revised Sept. 15, 2015). In
November 2013, Dr. Stevens prescribed a refill of her IBS medication. (Doc. #6, PageID
#670).
At step two, the ALJ considers the severity of the claimant’s medically
determinable impairments. 20 C.F.R. § 404.1520(a)(4)(ii). The ALJ must consider the
severity of each impairment, separately, and in combination with the claimant’s other
impairments. Soc. Sec. Rul. No. 85-28, 1985 WL 56856, at *3 (Soc. Sec. Admin. 1985).
“And to the extent an ALJ determines that an identified impairment, severe or nonsevere, does not result in any work-related restrictions or limitations, the ALJ ‘is required
to state the basis for such conclusion.’” Katona v. Comm'r of Soc. Sec., 2015 WL

4

In addition to IBS, Plaintiff contends that the ALJ failed to properly consider her fibromyalgia and
obesity.

16

871617, at *6 (E.D. Mich. Feb. 27, 2015) (quoting Hicks v. Comm'r of Soc. Sec., 2013
WL 3778947, at *3 (E.D.Mich. July 18, 2013)) (other citations omitted).
In the present case, the ALJ did not mention Plaintiff’s IBS at step two. Thus, he
did not determine whether it was severe or non-severe. In addition, he did not find that it
was not a medically determinable impairment. Defendant asserts that, if anything, the
ALJ’s omission is harmless error. “Since the ALJ found several impairments in this case,
he proceeded through the remaining evaluation and accounted for the functional
limitations supported by the record in his RFC analysis, making any ‘error’ at step two
clearly inconsequential.” (Doc. #10, PageID #728) (citations omitted).
But Defendant is only partly correct. Generally, an ALJ does not commit
reversible error by finding a non-severe impairment as long as: (1) the ALJ also found
that the claimant has at least one severe impairment; and (2) the ALJ considered both the
severe and non-severe impairments at the remaining steps in the sequential evaluation.
See Maziarz v. Sec’y of Health and Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); see
also Fisk v. Astrue, 253 F.App’x 580, 583 (6th Cir. 2007); Nejat v. Comm’r of Soc. Sec.,
359 F.App’x 574, 577 (6th Cir. 2009); Pompa v. Comm’r of Soc. Sec., 73 F.App’x 801,
803 (6th Cir. 2003) (“[O]nce the ALJ determines that a claimant has at least one severe
impairment, the ALJ must consider all impairments, severe and non-severe, in the
remaining steps.”).
The present case varies in two significant ways from Maziarz, Fisk, Nejat, and
Pompa. . First, ALJ Grippo did not find that Plaintiff’s IBS was non-severe; he did not
consider it at all at step two.
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Second, and more significantly, unlike the ALJs in Maziarz, Fisk, Nejat, and
Pompa, ALJ Grippo did not consider Plaintiff’s IBS at steps three or four and thus failed
to consider all of Plaintiff’s impairments, both severe and non-severe, as required at steps
three or four. See Pompa, 73 F.App’x at 803.5 Indeed, the ALJ only refers to IBS once,
noting “history of irritable bowel syndrome not affecting her body weight…” when
summarizing Dr. Danopulos’s objective findings. (Doc. #6, PageID #52). He did not
discuss IBS when determining at step three if Plaintiff had an impairment or combination
of impairments that meets or equals the Listings. Similarly, at step four, there is no
indication that he considered IBS when assessing her RFC.
The ALJ’s lack of meaningful consideration of IBS at step four constitutes error
under the Regulations. “In assessing RFC, the adjudicator must consider limitations and
restrictions imposed by all of an individual’s impairments, even those that are not
‘severe.’” Soc. Sec. Rul. No. 96-8P, 1996 WL 374184, at *5 (Soc. Sec. Admin. July 2,
1996). The ALJ failed to address any limitations or restrictions caused by IBS. For
example, Plaintiff testified that she had to call off work once or twice a month because of
IBS. (Doc. #6, PageID #68). She explained, “you get up, get a shower, get dressed, and
ready to go out the door and it just hits you and you’re in the bathroom for a half hour, 45
minutes because you can’t get off the toilet.” Id. at 77. This occurs at least two to three

5

See also Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law & Procedure in Federal Court §
3:14 (2015 ed.) (citations omitted) (“[T]he step two determination of severity is merely a threshold requirement.
Thus, there is no step two impairment inventory requirement. So long as the limiting effects of the other
impairments are considered at steps three, four, and five, the lack of inventory at step two (or a non-severe finding at
step two) on those other impairments is usually a harmless error.”).

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times per month, and she never knows when it will occur and or how long it will last. Id.
She has medication to stop her cramping and diarrhea but sometimes has to take two or
three doses before it works. Id. Even Dr. Kramer notes that she has IBS, and she
reported “significant symptoms.” Id. at 410.
In light of the vocational expert’s testimony that an employer will only tolerate
one absence per month, Plaintiff’s absences due to IBS are particularly relevant to her
ability to perform a job. But, the ALJ’s assessment of her RFC is devoid of any
consideration of her IBS by itself or in combination with her other severe and non-severe
impairments. This constitutes error, and as a result, ALJ Grippo’s assessment of
Plantiff’s RFC is not supported by substantial evidence.
C.

Remand6

A remand is appropriate when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to
provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 545-47 (6th Cir. 2004); failed to consider certain
evidence, such as a treating source’s opinions, see Bowen, 478 F.3d at 747-50; failed to
consider the combined effect of the plaintiff’s impairments, see Gentry, 741 F.3d at 7256

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s challenge to the ALJ’s assessment of Dr. Kramer’s opinions, fibromyalgia, and obesity is
unwarranted.

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26; or failed to provide specific reasons supported by substantial evidence for finding the
plaintiff to lack credibility, see Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th
Cir. 1994). The latter is warranted where the evidence of disability is overwhelming or
where the evidence of disability is strong while contrary evidence is lacking. Faucher v.
Sec’y of Health & Humans Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and the evidence of disability is not strong
while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to sentence four of §405(g) due
to the problems discussed above. On remand, the ALJ should be directed to evaluate the
evidence of record under the applicable legal criteria mandated by the Commissioner’s
Regulations and Rulings and by case law; and to evaluate Plaintiff’s disability claim
under the required five-step sequential analysis to determine anew whether Plaintiff was
under a disability and whether her applications for Disability Insurance Benefits and
Supplemental Security Income should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;
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2.

No finding be made as to whether Plaintiff Bonnie M. Wilson was under a
“disability” within the meaning of the Social Security Act;

3.

This matter be REMANDED to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for further consideration consistent
with this Report and Recommendations, and any decision adopting this
Report and Recommendations; and

4.

The case be terminated on the Court’s docket.

Date: November 15, 2016

s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days if this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections
shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is
based in whole or in part upon matters occurring of record at an oral hearing, the
objecting party shall promptly arrange for the transcription of the record, or such portions
of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s
objections within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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