The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESSICA MOORE, CASE NO. 1:23-CV-01080-DAC
Plaintiff, MAGISTRATE JUDGE DARRELL A. CLAY
vs. MEMORANDUM OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.
INTRODUCTION
Plaintiff Jessica Moore challenges the Commissioner of Social Security’s decision denying
disability insurance benefits (DIB). (ECF #1). The District Court has jurisdiction under 42 U.S.C.
§§ 1383(c) and 405(g). On May 30, 2023, pursuant to Local Civil Rule 72.2, this matter was
referred to me to prepare a Report and Recommendation. (Non-document entry dated May 30,
2023). Following review, and for the reasons stated below, I AFFIRM the Commissioner’s
decision.
PROCEDURAL BACKGROUND
Ms. Moore filed for DIB on July 26, 2021, alleging a disability onset date of June 1, 2020.
(Tr. 147). The claim was denied initially and on reconsideration. (Tr. 54-59, 61-67). She then
requested a hearing before an Administrative Law Judge. (Tr. 89-90). Ms. Moore (represented by
counsel) and a vocational expert (VE) testified before the ALJ on July 18, 2022. (Tr. 34-53). On
September 1, 2022, the ALJ issued a written decision finding Ms. Moore not disabled. (Tr. 14-29).
The Appeals Council denied Ms. Moore’s request for review, making the hearing decision the final
decision of the Commissioner. (Tr. 1-3; see 20 C.F.R. §§ 404.955, 404.981). Ms. Moore timely
filed this action on May 30, 2023. (ECF #1).
FACTUAL BACKGROUND
I. Personal and Vocational Evidence
Ms. Moore was 25 years old on the alleged onset date, making her a younger individual age
18-49 according to the regulations. (Tr. 27). She completed high school and a four-year degree. (Tr.
27, 37). In the past, she worked as an informal waitress, a fast-food worker, a customer service
representative, and as an English as a Second Language (ESL) teacher. (Tr. 27).
II. Relevant Medical Evidence
On January 15, 2020, Ms. Moore reported to her primary care physician, Gwen Haas,
M.D., , that when she is cold, she has redness, pain, and stiffness in her joints (hands, fingers,
hips, knees, feet, and toes), is lethargic, has extreme thirst, and experiences unexplained shortness
of breath. (Tr. 288). Dr. Hass observed a multitude of symptoms, including cold intolerance,
polyarthralgias, lethargy, extreme thirst, and shortness of breath with some air hunger but no
wheezing or cough. (Id.). Dr. Hass assessed Ms. Moore with polyarthralgia, cold intolerance, thirst,
shortness of breath, and possible Raynaud’s phenomenon without gangrene and recommended
she schedule her overdue routine medical in the next week or two. (Tr. 289-90).
The same day, Ms. Moore presented to the emergency department with the same
complaints, as well as a complaint of abnormal labs drawn earlier that day at her doctor’s office.
(Tr. 237, 241). Her neurological examination revealed no obvious deficits; she exhibited normal
sensation and strength bilaterally and could ambulate. (Tr. 247). She was diagnosed with dyspnea
and joint pain and discharged with instruction to follow up with her primary care physician as an
outpatient. (Tr. 250).
Ms. Moore followed up with Dr. Haas on January 21, 2020, who reviewed an elevated D-
dimer level but the CT angiogram from the emergency department was negative for pulmonary
embolism. (Tr. 284). She continued to complain of dyspnea, temperature intolerance, and fatigue.
(Id.). After ruling out acute issues such as pulmonary embolism, Dr. Haas referred Ms. Moore to a
rheumatologist. (Tr. 286).
Ms. Moore treated with rheumatologist David Mandel, M.D., on July 1, 2020, complaining
of using ibuprofen with some regularity due to pain, stiffness, and soreness in her wrists and
hands. (Tr. 336). Upon entering the office, her temperature was taken and she had no fever; she
also had no extra rheumatic symptoms such as psoriasis, iritis, or colitis. (Id.). On examination, she
had “very subtle slight synovial thickening over the top of both wrists, particularly the left wrist”
but no palpable synovitis of the proximal interphalangeal (PIP) or metacarpophalangeal (MCP)
joints, nor signs of flexor tenosynovitis in her hands. (Id.). Her pinch and grip were good, she had
no effusion of the knees or ankles, and sensation in her hands was intact. (Id.). Dr. Mandel
assessed her with early onset polyarthritis, inflammatory-type, and arthralgias. (Tr. 337). He sent
her for bloodwork including a Vectra DA profile. (Id.). The Vectra score was high at 53, indicating
an increased risk for radiographic progression; Dr. Mandel recommended adjusting the treatment
regimen to reduce inflammation. (Tr. 346).
On July 15, 2020, Ms. Moore followed up with Dr. Mandel to discuss lab results. (Tr. 332).
He diagnosed her with seronegative inflammatory arthritis, early onset polyarthritis and arthralgias
with multiple joint involvement and marked elevation of acute phase reactant studies. (Id.). On
examination, Dr. Mandel observed Ms. Moore had tenderness and pain to palpation over both
shoulders, “some tenderness” of the left subdeltoid bursa and both wrists, and “slightly decreased”
grip and pinch. (Tr. 332-33). Dr. Mandel started Ms. Moore on 300 mg daily Plaquenil. (Tr. 333).
On September 23, 2020, Ms. Moore met with Dr. Mandel for follow up. (Tr. 329). He
noted she had started Plaquenil earlier in the summer and was “feeling remarkably better” with
less morning pain, stiffness, swelling, and fatigue. (Id.). She was continuing to work virtually as an
ESL teacher and was engaging in some structured strengthening exercises. (Id.). On examination,
Dr. Mandel observed “definite reduced swelling over her wrists and knuckles,” negative prayer and
Tinel signs, no tenderness of the hips or knees, no effusions, and good pinch and grip. (Id.). He
noted she was on remittive therapy, recommended an annual eye exam while on Plaquenil, and
directed her to follow up in four to five months. (Tr. 329-30).
At follow up on December 15, 2020, Ms. Moore reported struggling with constipation the
past two to three months, but no melena or diarrhea; Dr. Mandel decided to discontinue
Plaquenil for two weeks to assess its effect on Ms. Moore’s constipation and recommended she
follow up with Dr. Haas and gastroenterology. (Tr. 326-27). Ms. Moore believed the Plaquenil was
“quite helpful,” and Dr. Mandel noted reduction in acute phase reactant studies. (Tr. 326). On
examination, Ms. Moore had minimal swelling and pain over her wrists, flexion and extension of
the wrists was slightly limited, no effusion in the knees or ankles, some pain and tenderness over
the right hip and right trochanteric bursa, but she exhibited negative Tinel and Phalen signs. (Id.).
On February 24, 2021, Ms. Moore met with Dr. Mandel, who noted she had a
gastrointestinal workup with no signs of inflammatory bowel disease; she had made some dietary
changes and had not had any abdominal cramping or melena. (Tr. 321). She was no longer
working her teaching job. (Id.). She had stiffness and soreness in her hands and wrists, and at times
had difficulty taking lids off jars and difficulty squeezing and holding materials. (Id.). Her RAPID-3
and MD global scores showed a moderate amount of pain. (Id.). She had pain to palpation over
both hands, diminished strength, painful Tinel sign on the left, and slight tenderness over her
hips. (Tr. 321, 323). Laboratory findings supported an underlying inflammatory process. (Tr. 323).
She had been using several Aleve and Tylenol each day because of pain; Dr. Mandel discussed
restarting Plaquenil and started her on a low dose bridge of prednisone. (Id.).
On June 11, 2021, Ms. Moore reported holding off Plaquenil while she was being
evaluated for dyspepsia, diarrhea, and constipation; her GI symptoms appeared to have abated.
(Tr. 319). On examination, she had no signs of flexor tenosynovitis and had fairly good flexion
and extension of the knees but had pain to palpation over her trochanteric and ischial bursae.
(Id.). Dr. Mandel recommended she follow up for reassessment at the end of the year. (Tr. 320).
A phone message from October 12, 2021, indicated Ms. Moore called Dr. Mandel’s office
to request a course of prednisone due to a flare in her hands, hips, and feet. (Tr. 322).
On October 26, 2021, Ms. Moore presented to Dr. Mandel for follow up after ongoing
pain, swelling, and stiffness in her hands and wrists and, at times, difficulty rising from a chair
because of pain and swelling in her feet. (Tr. 302). He noted she had started on a low-dose bridge
of prednisone for pain relief. (Id.). On examination, she had pain and tenderness over the left
shoulder with limited backward and lateral rotation of the shoulder, slight bony enlargement of
the distal interphalangeal (DIP) and PIP joints, limited forward bending of the spine, and good
grip and pinch. (Id.). Logrolling motion of the hips was good, sensation in both feet was intact, but
there was marked crepitus to palpation in the left arthritic knee. (Tr. 303). Dr. Mandel noted Ms.
Moore would continue using Tylenol, encouraged basic strengthening and conditioning exercises,
and noted the possibility of surgery for her left knee. (Tr. 303). Vectra testing was again high and
was still at increased risk for radiographic progression. (Tr. 307). Ultrasound revealed a slightly
enlarged and thickened supraspinatus tendon but otherwise normal findings; Dr. Mandel
administered a corticosteroid injection, reduced because of her history of diabetes. (Tr. 304).
On March 2, 2022, Ms. Moore presented to Dr. Mandel complaining of painful dysthesias
in her feet and hands. (Tr. 310). She was pursuing disability. (Id.). She reported to Dr. Mandel that
perhaps for short periods of time she might be able to lift 10 pounds; she has to take breaks either
standing, walking, or sitting but cannot do this on a consistent 8-hour basis; she cannot climb,
stoop, crouch, kneel, or crawl; she can rarely or occasionally balance; she can occasionally reach,
push, and pull small objects, but fine manipulation was affected by her decreased grip, and gross
manipulation might be occasionally affected; heights moving machinery, extreme temperatures,
and pulmonary irritants affect her condition; she had not been prescribed a cane, walker, brace,
TENs unit, breathing machine, oxygen, or wheelchair; she had moderate to severe pain that
impairs her concentration and focus, takes her off-task, and causes absenteeism; she perhaps
needed to elevate her legs to about 90 degrees; and she would require additional unscheduled rest
periods during an 8-hour workday. (Tr. 310-11). On examination, Ms. Moore had tenderness and
soreness over her neck and shoulders, her strength was limited by pain over her upper and lower
extremities; she had no rheumatoid nodules over the elbows or knees; light touch with a reflex
hammer appeared to provoke numbness and tingling; dorsiflexion of the great toes was slightly
impaired; and pulses in hands and feet were intact but grip strength was impaired. (Tr. 311). Dr.
Mandel assessed her with seronegative inflammatory arthritis, multiple joint involvement;
polymyalgias with features of fibromyalgia; on remittive therapy with sulfasalazine; and rheumatoid
factor, CCP, HLA-B27, and ANA negative. (Id.). He recommended she follow up with neurology
regarding the dysthesia-type symptoms in her hands and feet and continued her on low-dose
sulfasalazine. (Id.).
On April 8, 2022, Ms. Moore met with neurologist Joshua Sunshine, M.D., complaining of
pins and needles in her hands and feet that wake her up at night, but no weakness. (Tr. 377). She
reported tiredness and fatigue, poor appetite, change in bowel movements, neck or back pain,
muscle pain, pain/redness/swelling in her joints, numbness or tingling, memory or thinking
problems, trouble with walking or balance, anxiety, and hot/cold intolerance; she also admitted
problems performing daily activities including driving, dressing, cleaning, and shopping. (Id.). On
examination, she had normal strength in all extremities and her gait was within normal limits. (Tr.
378). She had reduced pinprick sensation in upper to mid forearms and ankles, reduced vibratory
sense bilaterally, and positive Tinel sign. (Id.). Dr. Sunshine assessed her with polyneuropathy
possibly due to excessive B6 from a supplement; he gave her wrist splints, reviewed blood work,
and recommended follow up for an electromyography and nerve conduction study. (Id.).
Ms. Moore followed up with Dr. Sunshine on May 26, 2022. (Tr. 393). She reported the
wrist splints helped and having a pain scale of four out of ten. (Id.). On examination, she had
normal strength in all extremities and her gait was within normal limits. (Tr. 393-94). She had
reduced pinprick sensation in upper to mid forearms and ankles, reduced vibratory sense
bilaterally, and positive Tinel sign. (Tr. 393). Dr. Sunshine updated his assessment as “numbness”
and recommended proceeding with an MRI to make sure it was not coming from her neck due to
her history of rheumatoid arthritis. (Tr. 394).
On June 20, 2022, Ms. Moore followed up with Dr. Mandel, and reported making some
significant accommodations in her lifestyle including exercise, work, and caring for her son. (Tr.
410). She had noticed definite improvement in muscle pain, fatigue, and joint stiffness, but still
had some joint swelling in her shoulders, hands, and wrists in the morning, and at times had
difficulty gripping, squeezing, and holding materials. (Id.). On examination, she had tender areas
over her shoulders, hands, and wrists, puffiness about her knuckles, and fairly good pinch and
grip. (Id.). Ms. Moore mentioned that possibly the sulfasalazine may be exacerbating her symptoms
of early satiety and Dr. Mandel recommended she follow up with gastroenterology. (Tr. 411).
III. Medical Opinions
At the initial level, agency reviewing physician James Cacchillo, M.D., reviewed Ms.
Moore’s medical records on September 15, 2021. (Tr. 54-58). Dr. Cacchillo concluded that Ms.
Moore’s impairments did not meet or medically equal Listing 14.09 (inflammatory arthritis). (Tr.
56). He opined Ms. Moore was limited to light work with further restrictions, including that she
could never climb ladders, ropes, or scaffolds; occasionally crawl; and frequently climb ramps and
stairs, stoop, kneel, and crouch and must avoid all exposure to hazards such as heavy machinery
and unprotected heights. (Tr. 56-57).
At the reconsideration level, Lynn Torello, M.D., reviewed the record on December 14,
2021, and affirmed Dr. Cacchillo’s finding that Ms. Moore’s impairments did not meet or
medically equal Listing 14.09. (Tr. 61-63). Dr. Torrello modified the residual functional capacity
(RFC) to include occasional crouching but otherwise affirmed Dr. Cacchillo’s findings. (Tr. 63-65).
On March 14, 2022, Dr. Mandel completed a physical capacity medical source statement
opining Ms. Moore’s lifting/carrying, standing/walking, and sitting would be affected by her
impairment. (Tr. 308). He stated she could possibly lift/carry 10 lbs. (Id.). With respect to
standing/walking, he indicated she needs to take a break every 15 minutes. (Id.). He opined she
could never climb, balance, stoop, crouch, kneel, or crawl, perform fine or gross manipulation,
and only occasionally reach or push/pull, and supported these limitations by stating “uncomfort”
and “tie shoes.” (Tr. 308-09). He indicated environmental restrictions affecting the impairment
included heights, moving machinery, temperature extremes, and pulmonary irritants. (Tr. 309).
She had not been prescribed any assistive device, brace, or TENS unit. (Id.). She had severe pain
that would interfere with concentration, take her off task, and cause absenteeism. (Id.). She would
need to elevate her legs to 90 degrees at will and alternate between sitting, standing, and walking,
and take additional unscheduled rest periods. (Id.).
IV. Administrative Hearing
Ms. Moore testified that she was 27 years old, completed high school, and received a four-
year college degree in English. (Tr. 37). She worked as a barista, a waitress, and a customer service
representative for a newspaper company, had been self-employed, and last worked as an ESL
teacher. (Tr. 37-38). The ESL teacher position was remote; she worked from home via a computer
video chat program to teach English to children overseas. (Tr. 38).
Ms. Moore stopped working on June 1, 2020; she was unable to hold a consistent schedule
or complete her job requirements due to fatigue and pain in her hands, fingers, wrists, hips, and
feet. (Tr. 39). She described that even though her ESL teaching position was the easiest on her
body, she still was unable to work without needing excessive breaks, or needing to sit/stand, or
pain interfering with her typing. (Tr. 39-40).
Her days vary depending on her pain levels. (Tr. 40). On a good day, she awakens and does
chores around the house including laundry, dishes, cleaning, dusting, and caring for her four-year-
old son. (Id.). She can usually play with her son while sitting in a reclining chair or laying in bed
and do activities like coloring, watching videos, or singing. (Id.). Her boyfriend, her son’s father,
also lives with them and helps care for their son. (Tr. 41).
Ms. Moore testified she had not found a medication that consistently manages her flares.
(Id.). She recently started sulfasalazine, which has reduced her flares to about once per month or
once every couple of months. (Id.). This medication causes some nausea, and she limits her meals
as a result. (Tr. 47-48). She also manages her diet and activities to avoid flares. (Tr. 41). She avoids
red meat and processed/fried foods. (Tr. 42). She also does stretching and strengthening exercises
such as yoga at home twice per week. (Tr. 41-42). She found that if she does yoga more frequently,
it causes soreness and fatigue. (Tr. 42). She limits activities such as standing and walking to no
longer than 30 minutes at a time. (Tr. 43). She used to lift weights but cannot do that any longer.
(Id.). If her hands are sore on a particular day, she will avoid doing dishes or typing, and she will
rest a book on a stand so the weight is not in her fingers. (Id.). She will recline or lay down with
her feet above her chest as much as possible during the day to reduce pressure on her feet and
hips. (Tr. 43-44). Even when she is careful, her hands will swell about once or twice per week. (Tr.
44). She does not have difficulty getting dressed or bathed because she has modified her routines:
she will take baths instead of showers to avoid standing, and she wears clothes that are easy to put
on, such as slip-on shoes, or with no ties, snaps, or buttons. (Tr. 46). She avoids typing on the
computer and uses voice-to-text instead. (Tr. 47). She has stopped hobbies such as weightlifting,
knitting, crocheting, and journaling because they cause pain. (Id.). She only sleeps for three or four
hours at a time before waking to walk around and relieve pressure on her hips. (Id.).
The VE described Ms. Moore’s past work as informal waitress, fast-food worker, customer
service representative, and ESL teacher. (Tr. 48). The VE testified that a hypothetical individual of
the same age, education, and work background as Ms. Moore, who can perform work consistent
with a light exertional level, but can never climb ladders, ropes, or scaffolds; frequently climb
ramps and stairs; frequently stoop and kneel; and occasionally crouch and crawl; can reach
frequently in all planes, including overhead and she can handle, finger, and feel with both hands
frequently; who must avoid exposure to high concentration of cold temperatures, and who can
have no exposure to unprotected heights or dangerous machinery, could perform Ms. Moore’s past
work as generally and actually performed. (Tr. 49). However, even assuming there was no past
work, the individual could perform representative jobs of cashier, sales attendant, and office
helper. (Tr. 49-50). If that individual were further limited to standing/walking four hours out of
every eight, that person could still perform the customer service representative position as generally
performed and the ESL teacher as actually performed. (Tr. 50). The VE also testified that the jobs
of cashier and marker would be available to a person so limited, but with job numbers reduced by
50% to accommodate an increased sit/stand interval. (Tr. 50-51). But if the individual needed to
elevate her legs to waist level at will, it would cause off-task behavior and preclude all work. (Tr. 51-
52). Employers tolerate no more than 10% off-task behavior or more than one absence per month.
(Tr. 52).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “Disability” is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 20 C.F.R. § 404.1505(a); see also 42 U.S.C. § 1382c(a)(3)(A). The Commissioner
follows a five-step evaluation process—found at 20 C.F.R. § 404.1520—to determine if a claimant is
disabled:
1. Was claimant engaged in a substantial gainful activity?
2. Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which substantially
limits an individual’s ability to perform basic work activities?
3. Does the severe impairment meet one of the listed impairments?
4. What is claimant’s residual functional capacity and can claimant perform
past relevant work?
5. Can claimant do any other work considering her residual functional
capacity, age, education, and work experience?
Under this five-step sequential analysis, the claimant has the burden of proof in Steps One
through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to
establish whether the claimant has the RFC to perform available work in the national economy. Id.
The ALJ considers the claimant’s RFC, age, education, and past work experience to determine if
the claimant could perform other work. Id. Only if a claimant satisfies each element of the analysis,
including inability to do other work, and meets the duration requirements, is she determined to be
disabled. 20 C.F.R. § 404.1520(b)-(f); see also Walters, 127 F.3d at 529.
THE ALJ’S DECISION
At Step One, the ALJ determined Ms. Moore had not engaged in substantial gainful
activity since June 1, 2020, the alleged onset date. (Tr. 19). At Step Two, the ALJ identified
rheumatoid arthritis as a severe impairment. (Tr. 19-20). The ALJ also considered neuropathy and
diabetes but found neither was a severe impairment. (Tr. 20). The neuropathy was not considered
a severe impairment because Ms. Moore had not received a definitive diagnosis of neuropathy and
the symptoms had not persisted for a full 12 months; additionally, some symptoms may be
attributable to rheumatoid arthritis and were considered when making additional findings. (Id.).
As for diabetes, laboratory testing was not consistent with a finding of diabetes and Ms. Moore was
not receiving treatment for diabetes; thus, the ALJ determined it was not a medically determinable
severe impairment. (Id.).
At Step Three, the ALJ determined Ms. Moore’s rheumatoid arthritis did not meet or
medically equal the severity of a listed impairment. (Tr. 20-21). Specifically, the ALJ considered
Listing 14.09 and found that, despite Ms. Moore’s complaints of pain, fatigue, and other
functional restrictions, such limitations were no more than moderate and did not meet Listing-
level severity. (Id.).
Before proceeding to Step Four, the ALJ reviewed the medical records, function reports,
administrative hearing testimony, and medical opinions to determine Ms. Moore has the RFC
to perform light work as defined in 20 CFR 404.1567(b) except she can: never
climb ladders, ropes, or scaffolds; frequently climb ramps and stairs; frequently
stoop and kneel; and occasionally crouch and crawl. She can reach frequently in all
planes, including overhead and she can handle, finger, and feel with both hands
frequently. She must avoid exposure to high concentration of cold temperatures.
She can have no exposure to unprotected heights or dangerous machinery.
(Tr. 21). At Step Four, the ALJ determined Ms. Moore has past relevant work as an informal
waitress, fast-food worker, customer service representative, and ESL teacher. (Tr. 27).
At Step Five, the ALJ concluded Ms. Moore could perform all her past relevant work and
jobs exist in significant numbers in the national economy that Ms. Moore can perform, including
cashier, sales attendant, and office helper. (Tr. 27-28).
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the Court “must affirm the
Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the
correct legal standards or has made findings of fact unsupported by substantial evidence in the
record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). The Commissioner’s
findings “as to any fact if supported by substantial evidence shall be conclusive.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). “Substantial
evidence is more than a 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.” Besaw v. Sec’y of
Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). However, “a substantiality of
evidence evaluation does not permit a selective reading of the record. Substantiality of evidence
must be based upon the record taken as a whole. Substantial evidence is not simply some evidence,
or even a great deal of evidence. Rather, the substantiality of evidence must take into account
whatever in the record fairly detracts from its weight.” Brooks v. Comm’r of Soc. Sec., 531 F. App’x
636, 641 (6th Cir. 2013) (cleaned up).
In determining whether the Commissioner’s findings are supported by substantial
evidence, the court does not review the evidence de novo, make credibility determinations, or
weigh the evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
Even if substantial evidence or indeed a preponderance of the evidence supports a claimant’s
position, the court cannot overturn “so long as substantial evidence also supports the conclusion
reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). This is so
because there is a “zone of choice” within which the Commissioner can act, without fear of court
interference. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citing Baker v. Heckler, 730 F.2d
1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner’s decision is supported by
substantial evidence, the Court must determine whether proper legal standards were applied. The
failure to apply correct legal standards is grounds for reversal. Even if substantial evidence supports
the ALJ’s decision, the court must overturn when an agency does not observe its own regulations
and thereby prejudices or deprives the claimant of substantial rights. Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 546-47 (6th Cir. 2004).
Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence
in the record to support the decision, [where] the reasons given by the trier of fact do not build an
accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp.
2d 875, 877 (N.D. Ohio 2011) (internal quotations omitted); accord Shrader v. Astrue, No. 11
13000, 2012 WL 5383120, at *6 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is not
mentioned, the Court cannot determine if it was discounted or merely overlooked.”); Hook v.
Astrue, No. 1:09-cv-1982, 2010 WL 2929562 (N.D. Ohio July 9, 2010).
DISCUSSION
Ms. Moore brings three issues for review:
1. Whether the ALJ failed to conduct a proper Step Three analysis to evaluate
if her inflammatory arthritis met Listing 14.09(A);
2. Whether the ALJ failed to conduct a Step Three analysis of Ms. Moore’s
neuropathic condition; and
3. Whether the ALJ erred in evaluating Dr. Mandel’s opinion evidence.
(ECF #9, PageID 443). I address each in turn below, but find that none warrant remand.
I. The ALJ’s evaluation of Listing 14.09(A) was proper.
Ms. Moore first argues the ALJ failed to properly conduct a Step Three Listings analysis for
her inflammatory arthritis. (ECF #9, PageID 454-58). She argues the ALJ’s explanation was
limited, and that he “cherry-picked” the evidence to use “self-care” activities as his reasoning to
find her not disabled; this, in her view, does not demonstrate she can perform work-related
activities. (Id.). In response, the Commissioner asserts the ALJ considered evidence, including
activities of daily living, such as “taking care of personal hygiene,” weighed the evidence in favor of
and against a finding of disability, and ultimately determined Ms. Moore was not disabled. (ECF
#11, PageID 477-82). As such, his decision was supported by substantial evidence and not subject
to remand by this Court. (Id.).
At Step Three, a claimant will be found disabled if her impairment meets or equals one of
the listed impairments. See 20 C.F.R. § 404.1520(a)(4)(iii); Turner v. Comm’r of Soc. Sec., 381 F.
App’x 488, 491 (6th Cir. 2010). The Listing of Impairments, located at Appendix 1 to Subpart P
of the regulations, describes impairments the Commissioner considers to be “severe enough to
prevent an individual from doing any gainful activity, regardless of his or her age, education, or
work experience.” 20 C.F.R. § 404.1525(a). As such, a claimant who meets or equals the
requirements of a listed impairment will be deemed conclusively disabled and entitled to benefits.
Id. The claimant must establish that claimed impairments meet or are medically equivalent to a
listed impairment. See, e.g., Lett v. Colvin, No. 1:13 CV 2517, 2015 WL 853425, at *15 (N.D. Ohio
Feb. 26, 2015). An ALJ will find that an impairment is “medically equivalent to a listed
impairment . . . if it is at least equal in severity and duration to the criteria of any listed
impairment.” 20 C.F.R. § 404.1526(a). The ALJ must consider all evidence in the case record
about the impairment(s) and its effects on the claimant that is relevant to the finding of medical
equivalence. 20 C.F.R. § 404.1526(c). At Step Three, Ms. Moore retains the burden of proof to
demonstrate she meets all requirements of the applicable Listing. See Walters, 127 F.3d at 529.
The requirements for Listing 14.09(A)1 are as follows:
14.09 Inflammatory arthritis. With:
A. Persistent inflammation or persistent deformity of:
1. One or more major peripheral joints in a lower extremity and
medical documentation of at least one of the following:
A documented medical need for a walker, bilateral canes, or
bilateral crutches or a wheeled and seated mobility device involving the use
of both hands; or
An inability to use one upper extremity to independently initiate,
sustain, and complete work-related activities involving fine and gross
movements and a documented medical need for a one-handed, hand-held
assistive device that requires the use of the other upper extremity or a
wheeled and seated mobility device involving the use of one hand; or
1 Ms. Moore argues only that she meets the requirements of Listing 14.09(A). (ECF
#9, PageID 455-56). I therefore limit my discussion here to the same and deem all other arguments
waived. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).
2. One or more major peripheral joints in each upper extremity and
medical documentation of an inability to use both upper extremities to the extent
that neither can be used to independently initiate, sustain, and complete work-
related activities involving fine and gross movements.
20 C.F.R. Pt. 404, Subpt P. App. 1, § 14.09(A).
Here, substantial evidence establishes that Ms. Moore does not meet subpart 1 of Listing
14.09(A) because she has not shown a documented medical need for a walker, bilateral canes, or
bilateral crutches or a wheeled and seated mobility device involving the use of both hands, or a
need for a one-handed, hand-held assistive device coupled with the inability to complete fine and
gross movements with the other hand. (See Tr. 309) (opinion of Dr. Mandel indicating Ms. Moore
required no cane, walker, or brace). As to subpart 2, substantial evidence likewise establishes Ms.
Moore does not meet all Listing requirements. As the ALJ analyzes:
Listing 14.09A requires objective evidence of persistent inflammation or persistent
deformity of one or more major peripheral joints in a lower extremity, and medical
documentation of . . . (2) an inability to use one upper extremity to independently
initiate, sustain and complete work-related activities involving fine and gross
movements and documented medical need for use of a one-handed, hand-held
assistive device that requires the use of the other upper extremity or a wheeled and
seated mobility device involving the use of one hand. In the case of an individual
who has persistent inflammation or deformity of one or more major peripheral
joints in both upper extremities, this listing may be met if there is medical
documentation of an inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete work- related
activities involving fine and gross movements.
The record does not establish that the claimant has this level of functional
restriction in ambulation or performing motor movements. treatment records show
that she complains about sometimes having difficulty performing activities such as
opening jars or maintaining her grasp on objects. But there is no indication that
she is unable to perform self-care activities, nor that any physician has prescribed
the use of an ambulation device of any kind.
(Tr. 20). As with Listing 14.09(A)(1), Ms. Moore has not demonstrated she meets the requirements
of Listing 14.09(A)(2) or that the ALJ did not properly evaluate the evidence.
The ALJ noted Ms. Moore complained of difficulty performing activities such as opening
jars or maintaining her grasp. (Tr. 20). But looking to the opinion as a whole, the ALJ also
considered that Ms. Moore “reported ‘definite improvement’ in muscle pain, fatigue, and joint
stiffness” when considering the other relevant subsections of Listing 14.09. (Tr. 21). He also
considered her fine and gross motor movements in her upper extremities at the RFC level, limiting
her to reaching frequently in all planes, and frequent handling, fingering, and feeling in both
hands. (Id.). He supported the RFC findings by considering evidence such as:
On days when her hands hurt, she avoids doing dishes, typing, and holding
books in her hands. (Tr. 22).
At her annual physical examination with Dr. Haas on January 28, 2020,
physical examination documented no joint redness or swelling, no joint
abnormalities, and normal reflexes and sensation. (Id.).
Physical examination notes document . . . “very subtle” slight synovial
thickening over the top of both wrists, greater on the left, without palpable
synovitis of the PIP or MCP joints, no signs of flexor tenosynovitis, good
pinch and grip strength. (Id.).
On February 24, 2021, the claimant reported that after stopping Plaquenil,
she had developed more stiffness and soreness in her hands and wrists. She
said she was having difficulty with functional activities such as taking the
lids off jars or squeezing and holding materials. She also experienced pain
to palpation over both hands and wrists and Dr. Mandel observed
diminished strength in the bilateral upper extremities. (Tr. 23).
On June 11, 2021, the claimant returned to see Dr Mandel, who found her
to have good strength in her upper extremities. (Id.).
This analysis evinces that the ALJ was not selective in his choice of evidence and did not
cherry-pick the record to reach a finding of non-disability, nor did he focus on self-care activities to
“ignore[] a wealth of evidence in the record that supports a finding that Ms. Moore
significantly limited in her ability to perform fine and gross movements.” (ECF #9, PageID 456).
Instead, the ALJ considered available evidence in the record both for and against a finding of
disability. He considered her subjective statements of her condition, such as inability to grip
objects, along with limitations in her ability to perform work-related activity such as typing. He also
considered the waxing and waning of her symptoms and her providers’ observations of the same.
Ms. Moore has not met her Step Three burden to demonstrate she meets all requirements
of Listing 14.09(A). I find the ALJ’s decision in this regard supported by substantial evidence and
thus to remand on this issue.
II. The ALJ did not err in his evaluation of Ms. Moore’s neuropathic condition.
Ms. Moore argues the ALJ failed to evaluate Ms. Moore’s neuropathic condition against
the relevant Listings at Step Three. (ECF #9, PageID 458-61). She states “[r]ecent evidence from
neurologist [Dr.] Sunshine confirmed that Ms. Moore has polyneuropathy of her hands and feet,
in addition to the inflammatory arthritis discussed above. The ALJ failed to conduct any Step
Three analysis of Listing 11.14 (Peripheral Neuropathy), to determine whether Ms. Moore’s
neuropathic condition met or equaled this listing.” (Id. at PageID 458) (internal citations omitted).
She then points to Dr. Sunshine’s findings of decreased pinprick sensations in Ms. Moore’s arms
and ankles, positive Tinel sign, and reduced vibratory sensation and mild neck ache, and her own
testimony of limitations in her activities of daily living to support that she met or equaled Listing
11.14. (Id. at PageID 460-61). The Commissioner responds that Ms. Moore forfeited the right to
argue she met Listing 11.14 by not raising the issue at the hearing before the ALJ and because the
evidence presented does not raise a substantial question as to whether she met or equaled that
Listing. (ECF #11, PageID 482-85).
Social Security regulations require an ALJ to find a claimant disabled if the person meets a
listing. 20 C.F.R. § 404.1520(a)(4)(iii); Sullivan v. Zebley, 493 U.S. 521, 532 (1990). Neither the
Listings nor Sixth Circuit jurisprudence require the ALJ to “address every listing” or “discuss
listings that the applicant clearly does not meet,” but the ALJ should discuss the relevant listing
where the record “raises a substantial question as to whether [the claimant] could qualify as
disabled” under a listing. Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 641 (6th Cir. 2013)
(citations omitted). Where the ALJ’s decision does not discuss a listing subsequently raised in
objection, the court “must determine whether the record evidence raises a substantial question as
to [the claimant’s] ability to satisfy each requirement of the listing.” Smith-Johnson v. Comm’r of Soc.
Sec., 579 F. App’x 426, 433 (6th Cir. 2014).
Ms. Moore must do more than point to some evidence on which the ALJ could have based
his finding to raise a “substantial question” as to whether she has satisfied a listing. Sheeks, 544 F.
App’x at 641-42 (finding that claimant did not raise a substantial question as to satisfying the
listing for intellectual disability where the ALJ’s finding of borderline intellectual functioning
simply left open the question of whether he meets a Listing and where claimant pointed to only a
few pieces of tenuous evidence addressing the Listing). To raise a “substantial question,” the
claimant “must point to specific evidence that demonstrates [she] reasonably could meet every
requirement of the listing . . . . Absent such evidence, the ALJ does not commit reversible error by
failing to evaluate a listing at Step Three.” Id. at 432-33. “If a substantial question is raised, then it
cannot be harmless error since the claimant could have been found disabled.” Smith-Johnson, 579 F.
App’x at 433 n.5. But without such evidence, the ALJ does not commit reversible error by failing
to evaluate a listing at Step Three; reversal is not warranted when the ALJ’s Step Three conclusion
is sufficiently supported by factual findings elsewhere in the decision. Forrest v. Comm’r of Soc. Sec.,
591 F. App’x 359, 366 (6th Cir. 2014).
Here, the ALJ determined at Step Two that Ms. Moore’s polyneuropathy was not a severe
impairment:
Recent treatment records from Dr. Mandel, the claimant’s rheumatologist show
that he referred her to a neurologist [Dr. Sunshine] for evaluation of dysesthesias in
her extremities, which the claimant described as tingling or a pins-and-needles
sensation. Although an EMG and MRI were ordered by the neurologist, the
claimant has not received a definitive diagnosis of neuropathy. Additionally, these
symptoms have not persisted for a full 12 months. These symptoms may be
attributable to the claimant’s rheumatoid arthritis but have not been shown to be a
symptom of another medically determinable impairment. Therefore, these
symptoms were considered when making the findings below.
(Tr. 20). The ALJ does not appear to have mischaracterized Dr. Sunshine’s findings in this Step
Two assessment. (Compare id. with Tr. 377-78 and Tr. 393-94).
Ms. Moore first saw Dr. Sunshine on April 8, 2022, just short of five months before the
ALJ issued his decision. (Tr. 29, 377). At this first visit, Dr. Sunshine assessed her with
polyneuropathy, but also surmised her symptoms may be related to excessive B6 from a gummy
supplement she was taking at the time. (Tr. 378). When she returned to Dr. Sunshine on May 26,
2022, he updated his assessment to remove the polyneuropathy diagnosis in favor of a diagnosis of
numbness. (Tr. 394). He also noted some reservations as to whether the symptoms were
independent or if they were related to her rheumatoid arthritis. (See id.). He recommended
proceeding with an MRI to further clarify whether her symptoms stemmed from rheumatoid
arthritis. (Id.).
Absent a definitive diagnosis of polyneuropathy resulting in a finding of a non-severe
impairment at Step Two, Ms. Moore cannot show she meets the requirements of Listing 11.14(A)
at Step Three, or even raise a “substantial question” that she meets the same. Sheeks, 544 F. App’x
at 641-42. Thus, the ALJ did not err by failing to address Listing 11.14 in his Step Three analysis. I
decline to remand on this basis.
III. The ALJ did not err in his evaluation of Dr. Mandel’s medical opinion.
Finally, Ms. Moore argues the ALJ improperly weighed Dr. Mandel’s opinion and
subjected it to greater scrutiny than the regulations require. (ECF #9, PageID 461-64). She takes
issue with the ALJ rejecting Dr. Mandel’s opinion because it was based on her subjective symptom
statements and argues the ALJ’s analysis was conclusory and do not provide her or this Court with
the ability to understand his reasoning. (Id. at PageID 463-64). The Commissioner opposes, stating
the ALJ properly articulated his consideration of Dr. Mandel’s opinion and of the other opinions
in the record. (ECF # 11, PageID 485-88).
In determining the persuasiveness of a medical opinion, the ALJ considers five factors: (1)
supportability; (2) consistency; (3) relationship with the claimant, including length of treatment
relationship, frequency of examinations, purpose of the treatment relationship, and examining
relationship; (4) specialization; and (5) other factors that tend to support or contradict a medical
opinion. 20 C.F.R. § 404.1520c(c)(1)-(5). The most important factors the ALJ must consider are
supportability and consistency. 20 C.F.R. § 404.1520c(b)(2). With respect to supportability, “[t]he
more relevant the objective medical evidence and supporting explanations presented by a medical
source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions .
. . will be.” 20 C.F.R. § 404.1520c(c)(1). Similarly, “[t]he more consistent a medical opinion(s) . . .
is with the evidence from other medical sources and nonmedical sources in the claim, the more
persuasive the medical opinion(s) . . . .” 20 C.F.R. § 404.1520c(c)(2).
The ALJ must “explain how [he] considered the supportability and consistency factors for a
medical source’s medical opinions” in the written decision. 20 C.F.R. § 404.1520c(b)(2).
Conversely, the ALJ “may, but [is] not required to, explain” how he considered the relationship,
specialization, and other factors set forth in paragraphs (c)(3) through (c)(5) of the regulation. Id.
When two or more medical opinions about the same issue are equally well-supported and
consistent with the record, but are not exactly the same, the ALJ must “articulate how [he]
considered the other most persuasive factors” of relationship, specialization, and other factors set
forth in paragraphs (c)(3) through (c)(5) of the regulation. 20 C.F.R. § 404.1520c(b)(3).
Here, the ALJ analyzed Dr. Mandel’s opinion as follows:
The claimant’s rheumatologist, David R. Mandel, M.D., provided an opinion on
March 14, 2022 regarding the limitations imposed by the claimant’s rheumatoid
arthritis, on a form entitled “Medical Source Statement: Patient’s Physical
Capacity.” Dr. Mandel offered the opinion that the claimant is limited to lifting 10
pounds occasionally and needs to take breaks from standing and walking. He also
said that her ability to sit is affected by her impairment but did not provide any
type of time limit. He said that the claimant should never climb, balance, stoop,
crouch, kneel, or crawl; never perform fine or gross manipulation; and occasionally
reach, and push/pull. He said that the claimant should avoid moving machinery,
temperature extremes, and pulmonary irritants. He further opined that the
claimant experienced severe pain that interferes with her concentration, takes her
off-task, and would cause absenteeism. Dr. Mandel also said that the claimant
needs to be able to elevate her legs at will and requires unscheduled rest periods in
addition to the standard breaks usually provided by employers.
In support of his opinion, Dr. Mandel submitted his office visit notes from an
appointment on March 2, 2022. The notes for this appointment make clear that he
reviewed the form described above with her and asked her questions to assess how
much she would be able to perform the activities. For example, he asked her if
lifting and carrying are affected by her impairment and she replied that she would
be able to lift up to 10 pounds of weight for short periods of time. He also said that
she would have to take a break when sitting or walking. The fact that Dr. Mandel
relied on the claimant’s responses to his questions in completing the form renders
it less than persuasive.
Additionally, although Dr. Mandel has regularly treated the claimant, his physical
examination notes from this and other appointments fail to provide objective
support for such a great degree of limitation. For instance, at the appointment
where he went over the form with her, his physical examination referred to her as
having impaired grip strength, and strength limited by pain in her upper and lower
extremities. However, he does not provide any documentation of strength testing,
nor identify the degree of limitation in these functions. He offered no justification
or support for the recommendation that she should elevate her legs. Finally,
limiting the claimant to performing no postural activities or fine and gross
manipulation is wholly inconsistent with the claimant’s reported independence in
performance of ADLs and some household chores. The muscular ultrasound
indicates moderate inflammatory arthritis.
(Tr. 25-26) (cleaned up).
My review confirms the ALJ followed the regulations when articulating his analysis of Dr.
Mandel’s medical opinion. He articulates his consideration of the evidence in terms of
“supportability” by noting that the main support for Dr. Mandel’s opinion was his March 2, 2022
examination. (Tr. 25). Comparing that visit with the opinion evidence, it is apparent that Dr.
Mandel reviewed the form with Ms. Moore present. (Compare Tr. 310-11 (“She has gone forward
applying for disability. We spent some time reviewing her questionnaire form about this.”) with Tr.
308-09). Merely transposing a claimant’s subjective symptom statements does not transform them
into a medical opinion, Francis v. Comm’r Soc. Sec. Admin., 414 F. App’x 802, 804 (6th Cir. 2011),
and it was appropriate for the ALJ to acknowledge this lack of support in his reasoning for the
persuasiveness of Dr. Mandel’s opinion. The ALJ also articulated the lack of support found
elsewhere in Dr. Mandel’s treatment notes, and the failure to provide objective testing in support
of his opined limitations. (Tr. 26). He also articulated the inconsistency of Dr. Mandel’s opinion
with Ms. Moore’s own reports of independence in her activities of daily living and in some of her
household chores. (Id.), The ALJ articulated his findings in the required terms of supportability
and consistency; consequently, there is no error requiring remand. Ms. Moore’s argument
otherwise amounts to a request to reweigh the evidence, which I may not do. I therefore decline to
remand on this basis.
CONCLUSION
Following review of the arguments presented, the record, and the applicable law, I
AFFIRM the Commissioner’s decision denying disability insurance benefits.
Dated: April 9, 2024
} i }
UNITED STATES MAGISTRATE JUDGE
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