Hazel v. Kijakazi

Filing 18

ORDER Affirming the Commissioner's Decision. Signed by Judge John T. Fowlkes, Jr. on 2/7/2024. (Fowlkes, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JEREMY HAZEL,
Plaintiff,
v.
KILILO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.

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Case No. 2:22-cv-02861-JTF-cgc

ORDER AFFIRMING THE COMMISSIONER’S DECISION
On December 20, 2022, Claimant Jeremey Hazel filed a Complaint seeking judicial review
of a Social Security disability benefits decision. (ECF No. 1 (sealed).) Hazel seeks to appeal a
final decision of the Commissioner of Social Security (“Commissioner”) denying him disability
insurance benefits under Title II of the Social Security Act (“the Act”). 42 U.S.C. §§ 401-34. Hazel
filed his brief in support of his appeal on June 9, 2023. (ECF No. 17 (sealed).) The Commissioner
filed its brief in support of the decision on April 30, 2023. (ECF No. 16 (sealed).) For the reasons
set forth below, the Commissioner’s Decision is AFFIRMED.
I.

FACTUAL BACKGROUND

Before the events giving rise to this case, Hazel filed for, and was denied Social Security
Disability Insurance benefits in a decision dated November 29, 2018. (ECF No. 10-3, 5.) He then
filed a new application on May 11, 2020, alleging that his disability began on November 30, 2018.
(Id.) Hazel’s second claim was denied initially, and again upon reconsideration, prompting him to
request an administrative hearing. (Id.) Following that hearing, Administrative Law Judge Lyle A.

Jones (“ALJ”) found Hazel was not under a “disability” as defined in the Act in a decision dated
December 10, 2021. (Id. at 19.) Hazel timely filed an Appeal to the Appeals Council, which denied
the request for review and affirmed the ALJ’s decision on October 28, 2022. (ECF No. 10-2, 2.)
Upon receipt of this determination, Hazel had exhausted his administrative appeals, making him
eligible to seek review in this Court under 42 U.S.C. § 405(g). Hazel commenced his appeal on
December 20, 2022. (ECF No. 1.)
The ALJ’s decision followed the standard five-step sequential evaluation process laid out
in 20 C.F.R. § 404.1520. (ECF No. 10-3.) Additionally, because there was a final decision on his
prior disability claim, the ALJ considered whether there was new and material evidence that
resulted in a change in his condition. (Id. at 13-14.) Because the ALJ found that a material change
had occurred, he was not bound to the prior decision. (Id.)
At the first step, the ALJ found that Hazel had not engaged in substantial gainful activity
from November 20, 2018, his alleged onset date, through September 30, 2019. (Id. at 7-8.) At step
two, the ALJ determined that through the date last insured, Hazel had several severe impairments
including degenerative disc disease of the cervical and lumbar spine, migraine headaches, anxiety,
attention deficit hyperactivity disorder, and asthma. (Id.) At step three, the ALJ found that through
the date last insured, Plaintiff did not have an impairment or combination of impairments that met
or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (Id.) Before proceeding to step four, the ALJ was required to determine Hazel’s
residual functional capacity (“RFC”), or his “ability to do physical and mental work activities on
a sustained basis despite limitations from his impairments.” 20 C.F.R. § 404.1545; Howard v.
Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002). The ALJ considered Hazel’s physical
examination records, reported symptoms, and medical opinions. (Id. at 9-17.) On appeal, Hazel

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takes issue with the ALJ’s ultimate RFC determination, arguing that the judge did not properly
explain his reason for retaining the same RFC for light work between his first and second decisions,
despite finding that Hazel had additional severe impairments. (ECF No. 17, 6.) Additionally, he
contends that the ALJ improperly discounted medical opinion evidence of his orthopedic surgeon,
Dr. Hauser, by not articulating why that doctor’s medical opinion certifying him with a disability
was not consistent and supported by the record. (Id. at 1, 8.) Hazel had been seeing Dr. Hauser
since November of 2018, before his date last insured, 1 September 30, 2019. (ECF No. 11, 8-9.)
Dr. Hauser concluded that:
Hazel’s impairments are expected to last at least twelve months, Mr. Hazel will constantly
experience pain and other symptoms severe enough to interfere with attention and
concentration needed to perform even simple work tasks. Mr. Hazel can only be expected
to sit for 5 minutes at a time, he can only be expected to stand for 5 minutes at a time, and
out of an 8-hour working day, Mr. Hazel would only be able to sit, stand, or walk less than
2 hours. Mr. Hazel would need periods of walking around during an 8-hour working day
for about 15 minutes every 3-5 minutes. Mr. Hazel would need a job that permits shifting
positions from sitting, standing, or walking and Mr. Hazel would need to take unscheduled
breaks every 20-30 minutes for 10-15 minutes at a time. Mr. Hazel would need to use a
can or other assistive device while engaging in occasional standing/walking. Mr. Hazel can
only occasionally lift 10 pounds or less, and never lift over 10 pounds. Mr. Hazel would
never be able to stoop, crouch/squat, climb ladder, or climb stairs. On estimate, Mr. Hazel
would be expected to miss more than four days per month from work and it is noted by Dr.
Hauser that Mr. Hazel’s conditions will progress with age.
(ECF No. 11, 4 (record citations omitted).) Dr. Hauser’s opinion purportedly pertained to
the time period prior to the date last insured. However, the ALJ was not convinced by Dr. Hauser’s
opinion because it was unsupported by the record. (ECF No. 10-3, 16.) After considering all of
the evidence in the record, the ALJ issued the ultimate RFC determination:
The claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except that he is limited to frequent reaching with both
upper extremities and frequent balancing; occasional stooping, kneeling, crouching,
crawling, and climbing of stairs and ramps; no climbing of ladders, ropes, or scaffolds or
concentrated exposure to temperature extremes or any exposure to unprotected heights or
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Because Hazel only applied for disability insurance benefits (DIB), he has to prove that his disability
began prior to September 30, 2019, his date last insured (DLI). (ECF No. 10-3, 6.)

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dangerous machinery. The Claimant’s mental capacity for work is reduced to the extent
that he is limited to jobs involving only simple one-two step instruction with no more than
two hours of concentration without a break in an environment where changes are infrequent
and gradually introduced.
(ECF No. 10-4, 8.) With this done, the ALJ moved to step four, where he determined that
Hazel was unable to perform any past relevant work with his current RFC, based in part on the
testimony of a vocational expert (“VE”). (Id. at 13.)
At step five, the ALJ determined that there are jobs that exist in significant numbers in the
national economy that Hazel could perform. (Id. at 14.) The VE’s testimony again informed the
ALJ’s decision. The VE testified that:
given all of these factors [Hazel] would be able to perform the requirements of
representative occupations such as sales attendant [], routing clerk [], [and]
housekeeper/cleaner []. there are approximately 649,000 such jobs in the national
economy.
(Id.) With this, the ALJ found that Hazel had not been under a disability, as defined in the
Social Security Act, from July 2, 2015, his alleged onset date, and denied benefits. (Id. at 15.)
II.

LEGAL STANDARD

Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision made
by the Commissioner after a hearing to which he or she was a party. “The court shall have power
to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the Commissioner's decision is
limited to whether there is substantial evidence to support the decision and whether the
Commissioner used the proper legal criteria in making the decision. Id.; Cardew v. Comm'r of Soc.
Sec., 896 F.3d 742, 745 (6th Cir. 2018); Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers
v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial evidence is more than a

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scintilla of evidence but less than a preponderance and is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Kirk v. Sec'y of Health & Human Servs.,
667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In determining whether substantial evidence exists, the reviewing court must examine the
evidence in the record as a whole and “must ‘take into account whatever in the record fairly
detracts from its weight.’” Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990) (quoting Garner
v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). If substantial evidence is found to support the
Commissioner's decision, however, the court must affirm that decision and “may not even inquire
whether the record could support a decision the other way.” Barker v. Shalala, 40 F.3d 789, 794
(6th Cir. 1994) (quoting Smith v. Sec'y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir.
1989)). Similarly, the court may not try the case de novo, resolve conflicts in the evidence, or
decide questions of credibility. Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012)
(citing Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Rather, the Commissioner, not the
court, is charged with the duty to weigh the evidence, to make credibility determinations, and to
resolve material conflicts in the testimony. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th
Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990). For a decision to be supported by
substantial evidence, “the ALJ’s decision still must say enough ‘to allow the appellate court to
trace the path of [their] reasoning.’” Stacey v. Comm’r of Soc. Sec., 451 F. App’x 517, 519 (6th
Cir. 2011) (quoting Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995)).
III.

ANALYSIS

Hazel contends that the Court should remand this case for three reasons. First, he argues
that the ALJ failed to articulate why his orthopedic surgeon’s medical opinion was not persuasive.
Second, the ALJ did not account for Hazel’s severe impairments in the RFC. Third, Hazel asserts

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that the ALJ’s ultimate RFC decision is unsupported by substantial evidence. The Court considers
each of Hazel’s arguments below. Because the Court finds that none of the arguments are welltaken, it AFFIRMS the Commissioner’s determination.
A. Medical Opinion Evidence

In his opinion, the ALJ found Dr. Houser’s opinion to be without persuasive value because
“although it purportedly pertains to the time period prior to the date last insured, it is without
support from the record for that time period.” (ECF No. 10-3, 16.) Hazel argues that the ALJ
failed to articulate how Dr. Hauser’s opinions were inconsistent with or unsupported by the record,
and that this failure was not harmless error. (ECF No. 17, 10.) He maintains that the ALJ
discounted this opinion without explanation, stating only that the opinion was “without support in
the record.” (Id.) Hazel argues that this decision is not harmless insofar as this determination is
unsupported by substantial evidence in the record. (Id.)
The factors for weighing medical opinions include (1) supportability; (2) consistency; (3)
relationship with the claimant, which in turn includes factors such as length of the treatment
relationship, frequency of examinations, purpose of the treatment relationship, extent of the
treatment relationship and the existence of an examining relationship; (4) specialization and (5)
“other factors that tend to support or contradict a medical opinion or prior administrative medical
finding.” 20 C.F.R. § 416.920c(c). “Supportability and consistency will be the most important
factors, and usually the only factors the ALJ is required to articulate.” Jones v. Berryhill, 392 F.
Supp. 3d 831, 839 (M.D. Tenn. 2019) (quoting Pogany v. Berryhill, No. 4:18-CV-04103-VLD,
2019 WL 2870135, at *27 n.7 (D.S.D. July 3, 2019).
The Commissioner contends that the ALJ satisfied the articulation requirement. It is true
that the ALJ did not specifically identify what evidence he was referring to when he concluded
that Dr. Hauser’s opinion was not persuasive. However, the Commissioner persuasively points out
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that the ALJ thoroughly covered the record for the period which Dr. Hauser’s opinion relates. (See
ECF No. 10-3, 12-13 & 16.) The ALJ noted that in December 2018, Hazel had an MRI of his
cervical spine which revealed multilevel degenerative changes with left asymmetric disc bulge and
mild left neural foraminal narrowing at the C4-C5 vertebrae with moderate left and mild right
neural foraminal narrowing as well as mild central canal narrowing at the C5-C6 vertebrae and
moderate left and mild right neural foraminal narrowing at the C6-C7 vertebrae. (Id.) He also
found that in January and February 2019, Hazel’s gait and strength was normal and symmetric in
all four extremities. (Id. at 12-13.) The ALJ noted that in April 2019, Hazel had normal posture,
normal cervical spine range of motion, stable shoulders normal strength and muscle tone in the
upper extremities with normal sensation to light touch. (Id. at 13.)
The ALJ was aware of Dr. Hauser’s observation that Hazel’s limitations in this same period
were due to his cervical and lumbar impairments, which caused pain with range of motion,
tenderness and reduced strength. (ECF No. 10-10, 125.) However, ALJ concluded that other
medical opinions in the record, which were in tension with Dr. Hauser’s opinion, were more
consistent with prior admirative findings and were therefore more persuasive. Based on the
forgoing, the ALJ found that Dr. Hauser’s opinion was inconsistent with the record. (ECF No. 103, 15.)
The ALJ also addressed the supportability factor. He explained that Dr. Hauser diagnosed
Plaintiff with cervical radiculopathy, lumbar stenosis and lumbar radiculopathy and opined that he
had a preexisting diagnosis of post-traumatic stress disorder that impacted his employment
eligibility. (Id. at 16.) Hazel does not raise any objection to this.

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Consistent with the above, the Court finds that the ALJ did satisfy the articulation
requirement insofar as he described the evidence at odds with Dr. Hauser’s opinion, and considered
its supportability, ultimately finding that the opinion was not persuasive.
B. Other Severe Impairments

Hazel argues that the ALJ failed to account for his severe impairments in the RFC. (ECF
No. 17, 6.) Specifically, he contends that the ALJ erred in finding that Hazel’s RFC was the same
as the last time he reviewed it. Hazel notes that in his first decision, the ALJ found severe
impairments of degenerative disc disease in his neck, migraines, anxiety, and ADHD; but in his
second decision, the ALJ found additional severe impairments of asthma and degenerative disc
disease of the lumbar spine. (Id. at 6.) Hazel submits that since he has more severe impairments
than before and yet still has the same RFC, the ALJ must have erred because “[i]t is incongruous
to suggest that a severe impairment that significantly limits the claimant’s ability to perform basic
work activities does not reduce the claimant’s functional capacity for work.” (Id. at 8.) The
Commissioner argues that the ALJ did not err in maintaining the same RFC across both decisions
because an additional severe impairment does not necessarily change a claimant’s functional
capacity. (ECF No 16, 5.)
Under Bowen v. Yuckert, Step Two of the ALJ’s five-step Analysis requires a “threshold
showing of severity.” 482 U.S. 137, 146-47 (1987). In accordance with that interpretation, this
Court and Sixth Circuit have already considered this issue and concluded that “[a] claimant's
severe impairment may or may not affect his or her functional capacity to do work. One does not
necessarily establish the other.” See Jones v. Berryhill, No. 13-1134, 2017 WL 1187937, at *8
(W.D. Tenn. Mar. 30, 2017) (quoting Griffith v. Commissioner, 217 Fed. App’x 425, 429 (6th Cir.
2007)). Other circuits have reached similar conclusions, finding that the Step Two analysis of
whether a claimant suffers from any severe impairments is a “de minimis hurdle in the disability
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determination process,” and that the ALJ is therefore not required to include such limitations in
the RFC. See Lail v. Kijakazi, No. 21-2133, 2022 WL 1711809, at *3 (4th Cir. May 27, 2022)
(“[T]he ALJ’s finding that Lail’s carpal tunnel syndrome was a severe impairment at step two of
the sequential evaluation does not contradict the ALJ’s RFC which did not factor in specific
limitations due to carpal tunnel syndrome. Step two of the sequential evaluation is a threshold
question with a de minimis severity requirement”); see also McInyre v. Colvin, 758 F.3d 146, 151
(2nd Cir. 2014) (“[T]he standard for a finding of severity under Step Two of the sequential analysis
is de minimis and is intended only to screen out the very weakest cases.”).
Hazel is effectively asking the Court to hold that an ALJ’s lack of consideration as to
whether a severe impairment affects a claimant’s RFC constitutes per se reversible error because
(1) it is not a long logical leap to that conclusion; and (2) the authorities that are contrary to his
argument are unpublished. (ECF No. 17, 6-8.) Neither argument is persuasive. First, as noted
above courts interpret the requirements of Step Two’s finding of a severe impairment as a low bar,
especially in comparison to the similar findings required in Step Five. It logically follows from
this interpretation of “severe impairment” at Step Two that an ALJ need not account for every
severe impairment in the RFC. Second, the Court is not constrained by the lack of published
authorities. This Court’s Local Rules are silent on the precedential value of unpublished cases,
while the Sixth Circuit’s Local Rules explicitly permit reference to them. 2 See 6th Cir R 32.1(a).
Hence, the Court does not find error in the ALJ’s decision to not reference certain of Hazel’s
impairments in the RFC.

Moreover, Hazel does not cite to any published authorities in support of his contrary position; and an unpublished
decision is at least more persuasive than a non-existent one.
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C. The RFC

The Commissioner maintains that the RFC determination was supported by substantial
evidence. (ECF No. 16 at 8.) The ALJ considered the medical and non-medical evidence and
reasonably determined that Plaintiff could perform a limited range of light work. (ECF No. 10-3,
9-10.) The ALJ also considered Hazel’s testimony concerning the impact of sciatica relative to his
difficulty moving, and pain. (Id. at 11.) Hazel’s representative questioned him about the painful
condition of his neck, and he represented that the condition had not changed since the prior
decision on November 29, 2018. (Id.) He also addressed Hazel’s asthma despite not explicitly
covering it in his own analysis when assigning him an RFC. However, the ALJ considered Dr.
Chung’s RFC, which did consider Hazel’s asthma and found that it was under control as of the
date last insured. (See id. at 15 & ECF No. 10-4, 54); see also Coldiron v. Comm'r of Soc. Sec.,
391 F. App'x 435, 443 (6th Cir. 2010) (holding that an impairment was factored into the ALJ’s
decision indirectly as part of his consideration of the doctors’ opinions); Bledsoe v. Barnhart, 165
Fed.Appx. 408, 412 (6th Cir.2006) (same).
Given the ALJ’s thorough discussion of Hazel’s spinal condition, and his explicit reliance
on Dr. Chung’s RFC which addressed his asthma, the Court finds that there is substantial
evidence for the RFC.
IV.

CONCLUSION

For the reasons above, the Commissioner’s decision is supported by substantial evidence
and is hereby AFFIRMED.
IT IS SO ORDERED this 7th day of February, 2024.
s/John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT

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