Hawk v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ANGELA HAWK, Case No. 1:20-cv-81

Plaintiff, Cole, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Angela Hawk filed this Social Security appeal in order to challenge the

Defendant’s findings that she is not disabled. See 42 U.S.C. §405(g). Proceeding

through counsel, Plaintiff presents five claims of error, all which the Defendant disputes.

For the reasons explained below, I conclude that the ALJ’s finding of non-disability should

be AFFIRMED, because it is supported by substantial evidence in the administrative

record.

I. Summary of Administrative Record

In November 2016, Plaintiff filed applications for Disability Insurance Benefits (DIB)

and Supplemental Security Income alleging a disability onset date of March 15, 2011,

due to mental and physical impairments. (Tr. 15). After Plaintiff’s claims were denied

initially and upon reconsideration, she requested a hearing de novo before an

Administrative Law Judge. (“ALJ”). On December 6, 2018, ALJ Renita Bivins held an

evidentiary hearing at which Plaintiff appeared with counsel.1 The ALJ heard testimony

1 At the hearing, Plaintiff amended her onset date to December 12, 2013. (Tr. 286).

from Plaintiff and an impartial vocational expert. On December 24, 2018, the ALJ denied

Plaintiff’s applications in a written decision. (Tr. 15-35). Plaintiff now seeks judicial review

of the denial of her application for benefits.

Plaintiff was born March 17th, 1975, and was 38 years old as of the date of onset

date. (Tr. 33). She reported completing high school and has no past relevant work. (Tr.

33). Based upon the record and testimony presented at the hearing, the ALJ found that

Plaintiff had the following severe impairments: “a spine disorder, osteoarthrosis, hearing

loss, a depressive disorder, a bipolar disorder, anxiety, a personality disorder, a post-

traumatic stress disorder, and opioid dependency.” (Tr. 18). The ALJ concluded that none

of Plaintiff’s impairments alone or in combination met or medically equaled a listed

impairment in 20 C.F.R. Part 404, Subp. P, Appendix 1. The ALJ determined that Plaintiff

retains the following residual functional capacity (“RFC”) to perform light work with the

following limitations:

She is able to lift and carry up to 20 pounds occasionally and 10 pounds

frequently; stand and/or walk for 6 hours per 8-hour day and sit for 6 hours

per 8-hour day with normal breaks. She can occasionally climb ramps and

stair, but never climb ladders, ropes, or scaffolds. She can frequently

balance, occasionally stoop, occasionally kneel, occasionally crotch, and

occasionally crawl. She must avoid concentrated exposure to extreme cold

and noise, meaning no more than frequent moderate noise levels. She

must avoid all exposure to hazards, such as unprotected heights and noisy,

dangerous, moving machinery, she can understand, remember, and carry

out simple instructions for routine repetitive tasks with no fast-pace or high

production quotas; she is able to maintain sufficient concentration,

attention, persistence, and price for simple work; she is able to adapt to

minimal or infrequent changes in the work setting and environment. She

can work in an environment with no interaction with the public, and

occasional interaction with coworkers and supervisors is [sic] on a

superficial basis such that the job does not require arbitration, conflict

resolution, or persuading others. She is able to be aware of normal hazards

and take appropriate precautions. Her medical conditions, symptoms, and

pain could be expected to have rendered her off task approximately four

percent of the work period and absent eight days per year after the

probationary period.

(Tr. 22). Based upon the record as a whole including testimony from the vocational

expert, and given Plaintiff’s age, education, work experience, and RFC, the ALJ

concluded that although Plaintiff is unable to perform her past relevant work, Plaintiff

could perform other work in the national economy including such jobs as

cleaner/housekeeper and sub-assembler. Accordingly, the ALJ determined that Plaintiff

is not under disability, as defined in the Social Security Regulations, and is not entitled to

DIB and/or SSI. Id.

The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff

argues that the ALJ erred by 1) failing to properly evaluate Plaintiff’s credibility, 2)

improperly evaluating Plaintiff’s mental impairments: 3) failing to find Plaintiff’s obesity to

be a severe impairment; 4) improperly evaluating Plaintiff’s physical RFC; and 5)

improperly relying on her own observations during the hearing. Upon close analysis, I

conclude that the ALJ’s decision should be affirmed.2

II. Analysis

A. Judicial Standard of Review

To be eligible for SSI or DIB a claimant must be under a “disability” within the

definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition

of the term “disability” is essentially the same for both DIB and SSI. See Bowen v. City

of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory meaning, a

2 Errors 1 and 5 involve similar issues and analysis and will be considered together. For the same reasons, errors 3

and 4 will be considered together.

“disability” includes only physical or mental impairments that are both “medically

determinable” and severe enough to prevent the applicant from (1) performing his or her

past job and (2) engaging in “substantial gainful activity” that is available in the regional

or national economies. See Bowen, 476 U.S. at 469-70 (1986).

When a court is asked to review the Commissioner’s denial of benefits, the court’s

first inquiry is to determine whether the ALJ’s non-disability finding is supported by

substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation

omitted). In conducting this review, the court should consider the record as a whole.

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports

the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial

evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35

F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary’s findings are not subject to reversal merely because

substantial evidence exists in the record to support a different conclusion .

. . . The substantial evidence standard presupposes that there is a ‘zone of

choice’ within which the Secretary may proceed without interference from

the courts. If the Secretary’s decision is supported by substantial evidence,

a reviewing court must affirm.

Id. (citations omitted).

In considering an application for disability benefits, the Social Security Agency is

guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if

the claimant is still performing substantial gainful activity; at Step 2, the Commissioner

determines if one or more of the claimant’s impairments are “severe;” at Step 3, the

Commissioner analyzes whether the claimant’s impairments, singly or in combination,

meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner

determines whether or not the claimant can still perform his or her past relevant work;

and finally, at Step 5, if it is established that claimant can no longer perform his or her

past relevant work, the burden of proof shifts to the agency to determine whether a

significant number of other jobs which the claimant can perform exist in the national

economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006);

20 C.F.R. §§404.1520, 416.920.

A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she

is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking benefits

must present sufficient evidence to show that, during the relevant time period, he or she

suffered an impairment, or combination of impairments, expected to last at least twelve

months, that left him or her unable to perform any job in the national economy. 42 U.S.C.

§ 423(d)(1)(A).

B. The ALJ’s decision is supported by Substantial Evidence

1. Plaintiff’s Subjective Complaints

Plaintiff argues that the ALJ failed to properly evaluate her subjective complaints

of pain and did not abide by the dictates of SSR 96-7p.3 Plaintiff further contends that the

ALJ improperly substituted her own opinion for that of medical evidence of record.

Plaintiff’s contentions lack merit.

The ALJ's assessment, formerly referred to as the “credibility” determination in

SSR 96-7p, was clarified in SSR 16-3p to remove the word “credibility” and refocus the

3 However, SSR 96-7p was replaced by a new ruling, SSR 16-3p, Evaluation of Symptoms in Disability Claims, 81 FR

14166, on March 16, 2016. The ALJ’s decision was issued on December 24, 2018. Thus, SSR 16-3p applies to the

ALJ’s decision.

ALJ’s attention on the “extent to which the symptoms can reasonably be accepted

as consistent with the objective medical and other evidence in the individual’s record.”

SSR 16-3p, 2017 WL 5180304 at *2 (October 25, 2017) (emphasis added). The new

ruling emphasizes that “our adjudicators will not assess an individual’s overall character

or truthfulness in the manner typically used during an adversarial court

litigation.” See id. at *11. Under SSR 16-3p, an ALJ is to consider all of the evidence in

the record in order to evaluate the limiting effects of a plaintiff’s symptoms, including the

following factors:

1. Daily activities;

2. The location, duration, frequency, and intensity of pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any medication an individual

takes or has taken to alleviate pain or other symptoms;

5. Treatment, other than medication, an individual receives or has received for

relief of pain or other symptoms;

6. Any measures other than treatment an individual uses or has used to relieve

pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes

every hour, or sleeping on a board); and

7. Any other factors concerning an individual's functional limitations and

restrictions due to pain or other symptoms.

Id., 2017 WL 5180304, at *7–8; see also 20 C.F.R. §§ 404.1529(c), 416.929(c) and

former SSR 96–7p.

Despite clarifying the basis for the analysis of subjective complaints and

corresponding elimination of the term “credibility” from the text in order to avoid “character

analysis,” SSR 16-3p was not intended to substantially change existing law. See Banks

v. Com'r of Soc. Sec., Case No. 2:18-cv-38, 2018 WL 6060449 at *5 (S.D. Ohio Nov. 20,

2018) (quoting explicit language in SSR 16-3p stating intention to “clarify” and not to

substantially “change” existing SSR 96-7p), adopted at 2019 WL 187914 (S.D. Ohio Jan.

14, 2019). Thus, it remains the province of the ALJ and not the reviewing court, to assess

the consistency of subjective complaints about the impact of a claimant’s symptoms with

the record as a whole. See generally Rogers v. Com'r, 486 F.3d 234, 247 (6th Cir. 2007).

As stated, the primary distinction between SSR 16-3p and the former SSR 96-7p

is the elimination of the word “credibility” and clarifying that the focus of the ALJ’s

evaluation should be on the “consistency” of subjective complaints with the record as a

whole. The elimination of the word “credibility” from SSR 16-3p is semantically awkward

in applying prior case law, insofar as virtually all of the case law interpreting the former

SSR 96-7p uses the catchphrase “credibility determination.” Nevertheless, the essence

of the regulatory framework remains unchanged. Therefore, courts agree that the prior

case law remains fully applicable to the renamed “consistency determination” under SSR

16-3p, with few exceptions. See Duty v. Com'r of Soc. Sec., 2018 WL 4442595 at *6 (S.D.

Ohio Sept. 18, 2018) (“existing case law controls to the extent it is consistent with the

clarification of the rules embodied in SSR 16-3p’s clarification.”).

Turning to that case law, it is clear that a reversal of the Commissioner’s decision

based upon error in a credibility/consistency determination requires a particularly strong

showing by a plaintiff. Like the ultimate non-disability determination, the assessment of

subjective complaints must be supported by substantial evidence, but “an ALJ's findings

based on the credibility of the applicant are to be accorded great weight and deference,

particularly since an ALJ is charged with the duty of observing a witness's demeanor

and credibility.” Walters v. Com'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Further,

a credibility/consistency determination cannot be disturbed “absent a compelling

reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). Thus, it is proper for an ALJ

to discount the claimant's testimony where there are inconsistencies and contradictions

among the medical records, his testimony, and other evidence. Warner v. Com'r of Soc.

Sec., 375 F.3d 387, 392 (6th Cir. 2004).

Here, in evaluating subjective allegations, the ALJ considered that Plaintiff’s

subjective allegations were not entirely consistent with the medical evidence and other

evidence of record. (Tr. 20-22). See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531

(6th Cir. 1997) (“Discounting credibility to a certain degree is appropriate where an ALJ

finds contradictions among the medical reports, claimant’s testimony, and other

evidence.”). In this regard, the ALJ noted that Plaintiff had the severe physical

impairments of a spine disorder, osteoarthritis, and hearing loss and experienced pain

and limitations as a result of those impairments (Tr. 18). However, the record showed that

the functional limitations stemming from these impairments were not as severe as

alleged. In terms of Plaintiff’s alleged back pain, a January 2017 x-ray showed only mild

degenerative changes (Tr. 24, 1506-07).

The ALJ noted that numerous examinations in the record showed normal strength,

sensation, range of motion, and muscle tone. (Tr. 23, 602, 654-56, 666-68, 688-70, 858,

1003, 1326-27, 1344-48, 1433-34, 1474, 1511). Plaintiff’s gait and station were also

normal. (Tr. 23, 668, 690, 804, 1235, 1273, 1326, 1346, 1414, 1433). Straight leg raise

testing was negative throughout the majority of the record, with some exceptions. (Tr. 23-

24, 811, 858, 1003, 1035, 1503). The ALJ further detailed that while Plaintiff complained

of left ankle pain in January 2017, imaging showed no acute bony abnormalities or

significant degenerative changes. (Tr. 24, 811). The ALJ further noted that Plaintiff

complained of left shoulder pain, but an MRI in January 2018 was normal and doctors

regularly found full strength and a normal range of motion in her upper extremities. (Tr.

24, 654-55, 666-67, 688-89, 1437, 1474), with rare exceptions. (Tr. 1397, 1413 (3/5

strength in left upper extremity, 5/5 on the right)).

With respect to Plaintiff’s mental impairments, the ALJ noted that such impairments

caused a number of functional limitations, but also reasonably found that Plaintiff’s

allegations of disabling symptoms was inconsistent with the medical evidence. As further

detailed below, while Plaintiff had a number of abnormal findings on various exams, and

the ALJ recognized that she was impulsive and had a history of altercations with

customers at her past jobs, her memory, affect, mood, judgment, insight, attention, and

concentration were frequently normal and treatment notes often reflected that Plaintiff

showed progress. (Tr. 25-30, 484, 502, 510, 516, 519, 522, 525, 527, 602, 606, 652, 815,

829, 888-89, 998-99, 1110, 1012, 1017, 1126, 1031, 1145, 1163, 1170, 1179, 1185-86,

1193, 1195, 1197, 1200, 1202, 1204-05, 1207, 1209, 1212, 1215, 1227, 1397, 1401,

1405, 1409, 1417, 1423, 1433, 1438).

The ALJ also considered Plaintiff’s noncompliance with treatment

recommendations. In this regard, the ALJ noted that Plaintiff was frequently noncompliant

with her medication regime for her mental impairments. (Tr. 26-27, 410, 502, 522, 768,

771, 1122, 1149). At one point, she stated that she had never taken all of her medications

as prescribed for a full 30-day period. (Tr. 29, 768). Plaintiff did report that medications

worked when she took them at the appropriate dose. (Tr. 25, 1009). She also reported

that she was progressing toward treatment goals, was less stressed, and was successful

in managing her symptoms when she took her medications as prescribed. (Tr. 29, 1177).

The ALJ also noted that Plaintiff was also noncompliant with treatment recommendations

for her physical impairments. Despite being diagnosed with type II diabetes, she was

observed drinking soft drinks on multiple occasions and stated that she did not check her

blood sugar or regulate her diet. (Tr. 29, 758, 1122, 1143). Further, Plaintiff was

discharged from physical therapy due to noncompliance and an inability to adhere to the

plan of care. (Tr. 29, 1278). Despite doctors’ recommendations, Plaintiff also continued

to smoke. (Tr. 31, 55, 1414).

The ALJ also properly considered Plaintiff’s daily activities. The ALJ noted that that

Plaintiff drove, on average, twice a week for less than ten miles. (Tr. 31). The ALJ also

noted that Plaintiff’s coping skills included watching movies and taking walks, that she

went out to dinner with her family, that she was able to prepare some food, and did some

household chores. Plaintiff also watched TV, read, wrote in a journal, and spent time with

her boyfriend, best friend, and mother. (Tr. 28, 313-14, 316). The ALJ reasonably

considered that these activities were inconsistent with Plaintiff’s allegations of total

disability. See Shepard v. Comm’r of Soc. Sec., 705 F. App’x 435, 441–42 (6th Cir. 2017)

(reasoning that the ALJ’s citation of “daily activities” functions as evidence undercutting

Plaintiff’s allegations rather than evidence demonstrating an ability to perform work).

While Plaintiff may not have engaged vigorously in her activities, such endeavors are not

indicative of an individual incapable of performing any type of work. See Sorrell v. Comm'r

of Soc. Sec., 656 F. App'x 162, 173 (6th Cir. 2016) (“The ALJ contrasted Sorrell’s ability

to do daily activities with her reports of pain—noting that Sorrell is “able to prepare simple

meals, perform various household duties with breaks, handle personal care, drive, and

shop”); Bogle v. Sullivan, 998 F.2d 342, 348 (6th Cir. 1993) (a claimant’s ability to perform

household and social activities on a daily basis is contrary to a finding of disability).

Last, Plaintiff argues that the ALJ improperly relied on her own observations during

the hearing. (Tr. 32). Namely, the ALJ discussed how Plaintiff was attentive to

questioning, able to sustain conversation, and follow and respond to questioning without

clarification and without confusion. Id. Plaintiff was able to recount important details of her

medical and personal history and had no difficulty expressing herself. Id. The ALJ also

did not observe any overt signs of anxiety, memory loss, or fatigue. Id. The ALJ

recognized that the hearing was “short-lived” and could not be considered of a “conclusive

indicator of [Plaintiff’s] overall level of pain . . . or mental functioning” on a day-to-day

basis, but reasonably noted that Plaintiff’s presentation at the hearing did not comport

with her allegations of total disability. See Brock v. Comm’r of Soc. Sec., 368 F. App’x

622, 625 (6th Cir. 2010) (an ALJ is permitted to consider a claimant’s demeanor at the

hearing in judging disability); see also Johnson v. Comm'r of Soc. Sec., 210 F.3d 372 (6th

Cir. 2000) (“Although [the ALJ] . . . describe[ed] Plaintiff's demeanor at the hearing, the

ALJ did not dismiss Plaintiff's claim of severe disabling pain solely on the basis of personal

observations. . . . However, as just discussed, the ALJ provided a detailed analysis of

Plaintiff's pain, assessing medical records, pain treatments, and daily activities. The ALJ's

personal observation was one of several factors, not the sole factor, in determining that

Plaintiff's pain was not disabling.”). Here, the ALJ specifically stated that her observations

did “not constitute substantial evidence” and were only given “slight weight.” (Tr. 32). Such

a finding comports with agency regulations and controlling law.

The Court “may not disturb” an ALJ’s subjective symptom evaluation “absent [a]

compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). While Plaintiff may

disagree with the ALJ’s subjective symptom evaluation, she fails to demonstrate a basis

for overturning the finding, especially given the great deference that an ALJ’s finding is

entitled to on review. See Walters, 127 F.3d at 531. The ALJ followed the regulations

and rulings when considering Plaintiff’s subjective reports and reasonably found that her

complaints were not fully credible. Accordingly, the ALJ’s decision is substantially

supported in this regard.

2. Evaluation of Plaintiff’s Mental Impairments

Plaintiff argues next that the ALJ erred in evaluating her mental impairments. More

specifically, Plaintiff argues that the ALJ erred by not specifying the degree of limitation

in four functional areas: activities of daily living; concentration, persistence, or pace; social

functioning; and episodes of decompensation. However, the agency revised its rules

governing evaluation of mental impairments in January 2017, and the new regulations

apply to the ALJ’s decision in this case. See SSA, Revised Medical Criteria for Evaluating

Mental Disorders, 81 12 Fed. Reg. 66138, 66147 (Sept. 26, 2016).

At steps two and three of the sequential evaluation process, the adjudicator

assigns ratings in four areas: (1) understand, remember, or apply information; (2) interact

with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself.

20 C.F.R., Part 404, Subpart P, App. 1, § 12.00(E). In rating these categories, the

adjudicator uses a five-point scale: none, mild, moderate, marked and extreme. 20 C.F.R.

§ 404.1520a(c)(4). The new regulations explicitly define these terms. Id., § 12.00(F)(2).

The regulations make clear that these ratings do “not necessarily reflect a specific type

or number of activities, including activities of daily living, that you have difficulty doing.”

Id., § 12.00(F)(3)(d).

An individual rating, therefore, is not in and of itself an RFC finding, but is an

indicator that the ALJ must perform an additional individualized analysis to determine the

appropriate parameters that capture the claimant’s specific functional limitations. See 20

C.F.R. § 404.1520a(d)(3) (“If we find that you have a severe mental impairment(s) that

neither meets nor is equivalent in severity to any listing, we will then assess your residual

functional capacity.”).

As noted by the Commissioner, the ALJ did in fact make explicit findings relating

to mental impairments as required by the regulations. Namely, the ALJ found that Plaintiff

had mild limitations in understanding, remembering, or applying information; moderate

limitations in interacting with others; moderate limitations in concentrating, persisting, or

maintaining pace; and mild limitation in adapting and managing oneself. (Tr. 19-21). The

ALJ followed the rules in 20 C.F.R. § 404.1520a and reasonably evaluated Plaintiff’s

limitations in each functional area.

Plaintiff further contends that the ALJ cherry picked the record and ignored

abnormal findings regarding her mental health. Specifically, Plaintiff argues that while the

ALJ points to observations which place the Plaintiff in a positive light, such as, “Thought

content: appropriate to mood and circumstances, logical,” she ignores notations that

include observations such as, “[t]hought content: “extremely impulsively anger, violent

and aggressive, easily overwhelmed, affected by any noise, yelling due to past abuse,

and has assaulted customers in past.” (Tr. 502, Exhibit B3F/5). Plaintiff further contends

that the ALJ completely ignores the notations. “She [Plaintiff] absolutely needs to resign

today and file for SSDI,” (Tr. 502, Exhibit B3F/5). “Currently working but advised her to

resign today due to her safety and others,” (Tr. 503, Exhibit B3F/6) (emphasis added).

Plaintiff’s contentions lack merit.

“It is well established that an ALJ is not required to “discuss every piece of

evidence in the record to substantiate [his] decision.” Conner v. Comm'r of Soc. Sec., 658

F. App'x 248, 254 (6th Cir. 2016) (citing Thacker v. Comm'r of Soc. Sec., 99 F. App'x 661,

665 (6th Cir. 2004)); see also Dykes ex rel. Brymer v. Barnhart, 112 F. App'x 463, 467–

68 (6th Cir. 2004) (“Although required to develop the record fully and fairly, an ALJ is not

required to discuss all the evidence submitted, and an ALJ’s failure to cite specific

evidence does not indicate that it was not considered.”) (citations omitted). See also

Conner v. Comm’r of Soc. Sec., 658 F. App'x 248, 254 (6th Cir. 2016) (“[W]e do not

require an ALJ to discuss every piece of evidence in the record to substantiate the ALJ’s

decision.”); Karger v. Comm’r of Soc. Sec., 414 F. App’x 739, 749 (6th Cir. 2011)

(observing that a “deficiency in opinion-writing is not a sufficient reason to set aside an

ALJ's finding where the deficiency [has] no practical effect on the outcome of the case”).

Here, the ALJ provided a lengthy evaluation of Plaintiff’s mental impairments from

July 2014 through October 2018. (Tr. 25-30). The ALJ explicitly citied the same pages

from 2016 referenced above by Plaintiff, noting that the record indicated that Plaintiff

reported having homicidal and suicidal thoughts, depending on her mood. (Tr. 27). While

the ALJ did not recite the exact quote outlined by Plaintiff above, she clearly conserved

such evidence. Moreover, the ALJ also noted that Plaintiff had normal behaving and

psychomotor activity in February 2017. The ALJ also detailed that Plaintiff made

significant progress in June and July 2018. In addition, the ALJ further noted that

treatment notes from October 2018 indicated that Plaintiff felt less stressed, was

progressing towards her treatment goals, and being successful managing her symptoms

by taking medication as prescribed. (Tr. 29).

Plaintiff also argues that the ALJ should have given more credence to the Global

Assessment of Functioning (GAF) scores in the record. GAF score represents “the

clinician's judgment of the individual's overall level of functioning.” American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., text

rev.2000). The GAF score is taken from the GAF scale, which “is to be rated with respect

only to psychological, social, and occupational functioning.” Id. The GAF scale ranges

from 100 (superior functioning) to 1 (persistent danger of severely hurting self or others,

persistent inability to maintain minimal personal hygiene, or serious suicidal act with clear

expectation of death). Id. at 34.

However, as noted by the Commissioner, there is no “statutory regulatory, or other

authority requiring the ALJ to put stock in a GAF score in the first place.” Kornecky v.

Comm’r of Soc. Sec., 167 F. App’x 496, 511 (6th Cir. 2006). “[A GAF] score may have

little or no bearing on the subject’s social and occupational functioning.” Id.; see also

Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498, 508 (6th Cir. 2013) (“[N]o particular

amount of weight is required to be placed on a GAF score.”). The ALJ acknowledged the

GAF scores in the record, but gave them little weight. (Tr. 33). The ALJ did not err in this

regard.

Based on the foregoing, the undersigned finds that the ALJ complied with 20

C.F.R. § 404.1520a and reasonably evaluated Plaintiff’s mental limitations. As noted

above, if substantial evidence supports the ALJ’s denial of benefits, then that finding must

be affirmed, even if substantial evidence also exists in the record to support a finding of

disability. Felisky, 35 F.3d at 1035. While Plaintiff may disagree with the ALJ, the ALJ’s

findings in this case were well within the zone of reasonable choices. See McClanahan

v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006). The ALJ’s decision is

substantially supported in this regard. See Longworth v. Comm’r of Soc. Sec, 402 F.3d

591, 595 (6th Cir. 2005) (“If substantial evidence supports the Commissioner’s decision,

this Court will defer to that finding even if there is substantial evidence in the record that

would have supported an opposite conclusion.”).

3. Consideration of Plaintiff’s physical impairments including Obesity

Plaintiff argues next that the ALJ’s RFC failed to properly evaluate her physical

impairments. More specifically, Plaintiff argues that the ALJ failed to find that Plaintiff’s

obesity was a severe impairment and also failed to properly consider the effects of her

obesity in accordance with SSR 02-01p. Plaintiff’s contentions are unavailing.

For an impairment to be “severe,” it must be expected to last more than 12 months

and more than “minimally” affect a claimant's work ability. See 42 U.S.C. §

423(d)(1)(A); Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (“an impairment can be

considered not severe only if it is a slight abnormality that minimally affects work ability

regardless of age, education, and experience”).

In her step-two finding, the ALJ noted that Plaintiff also had several impairments

she found to be non-severe. (Tr. 18). In this regard, the ALJ noted, inter alia, that Plaintiff

was obese. However, the ALJ found that there is no evidence that any of Plaintiff’s non-

severe impairments imposed more than minimal functional limitations on the Plaintiff’s

ability to perform work related activity. Notably, Plaintiff fails to point to any functional

limitations caused by her obesity. Accordingly, the undersigned finds that the ALJ's

decision is substantially supported.

Regardless, even if the Court found the ALJ erred, errors at Step 2 of the

sequential analysis will not necessarily require reversal, if the ALJ finds at least one

“severe” impairment and therefore continues with the remaining steps in the sequential

process. That is because in determining a plaintiff's residual functional capacity and ability

to work later in the sequential process, the ALJ must consider even the impairments found

not to be “severe” at Step 2. See Maziarz v. Secretary of Health and Human Servs., 837

F.2d 240, 244 (6th Cir. 1987); 20 C.F.R. § 404.1520. Thus, regulations require an ALJ to

“consider the limiting effects of all [the claimant’s] impairment(s), even those that are not

severe, in determining [the claimant’s] residual functional capacity. Pain or other

symptoms may cause a limitation of function beyond that which can be determined on the

basis of the anatomical, physiological or psychological abnormalities considered alone....”

20 C.F.R. § 404.1545(e).

In this case, the ALJ found several “severe” impairments, including a spine

disorder, osteoarthrosis, hearing loss, a depressive disorder, a bipolar disorder, anxiety,

a personality disorder, a post-traumatic stress disorder, and opioid dependency and

therefore proceeded through the five-step sequential analysis. Even if there was an error,

the ALJ's failure to consider Plaintiff's obesity as “severe” at Step 2 of the sequential

analysis, will not necessarily require reversal or remand. Contrary to Plaintiff’s claim, the

ALJ also reasonably considered her impairments in combination. As stated above, the

ALJ found that Plaintiff had several severe impairments. (Tr. 18). She also discussed

Plaintiff’s obesity, as well as several other alleged impairments, and explained her finding

that they were not medically determinable or severe impairments. (Tr. 18-19).

Accordingly, the undersigned finds that the ALJ adequately considered all of Plaintiff's

conditions in determining her RFC and therefore did not err at step-two of the sequential

evaluation.

Furthermore, the ALJ’s analysis also satisfied the requirements of SSR 02-01p.8

Though the ALJ did not discuss this ruling specifically, she considered Plaintiff’s obesity,

determined that it did not cause significant functional limitations. As noted by the

Commissioner, the ALJ’s RFC finding accommodated all of Plaintiff’s physical restrictions.

(Tr. 18-33). The Sixth Circuit has held that “[i]t is a mischaracterization to suggest that

Social Security Ruling 02-01p offers any particular procedural mode of analysis for obese

disability claimants.” Bledsoe v. Barnhart, 165 F. App’x 408, 412 (6th Cir. 2006). Here,

the ALJ considered obesity and also relied on the opinions of medical experts who

assessed Plaintiff’s functional limitations in light of her body habitus. This was not error.

Notably, Plaintiff fails to identify any specific physical limitations that should have

been included in the RFC as a result of her obesity. As noted above, Plaintiff fails to allege

that her obesity actually caused any functional restriction at all. It is Plaintiff’s burden to

show how her impairments affected her functioning during the time she alleges she was

disabled. 20 C.F.R. § 404.1512. Plaintiff has not shown that her obesity caused greater

limitations than those found in the ALJ’s RFC finding.

The ALJ thoroughly examined the evidence in the record and determined that

Plaintiff could perform a reduced range of light work. (Tr. 18-33). In coming to this

conclusion, the ALJ considered the medical evidence in the record as well as Plaintiff’s

treatment history and her lack of compliance with treatment recommendations. Id. The

ALJ also considered the only medical opinions in the record regarding her physical

limitations, those of the state agency reviewing physicians. Id. These two physicians

opined that Plaintiff could perform a range of work consistent with the ALJ’s RFC finding.

(Tr. 104-33, 136-71). See Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 713 (6th Cir.

2013) (holding that, under the Social Security regulations, the opinions of state agency

medical consultants may be entitled to significant weight where they are supported by the

record evidence); see also SSR 17-2p (replacing SSR 96-6p, effective March 27, 2017)

(“MCs and PCs are highly qualified medical sources who are also experts in the

evaluation of medical issues in disability claims under the Act.”). Accordingly, the ALJ’s

decision is substantially supported in this regard.

III. Conclusion and Recommendation

For the reasons explained herein, IT IS RECOMMENDED THAT Defendant’s

decision be found to be SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED,

and that this case be CLOSED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ANGELA HAWK, Case No. 1:20-cv-81

Plaintiff, Cole, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. 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 (6th Cir. 1981).