Yarger v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ANITA L. YARGER, Case No. 1:20-cv-347

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

Defendant.

Plaintiff Anita L. Yarger brings this action pursuant to 42 U.S.C. § 405(g) for judicial

review of the final decision of the Commissioner of Social Security (“Commissioner”) denying

her application for disability insurance benefits (“DIB”). This matter is before the Court for

disposition on plaintiff’s Statement of Errors (Doc. 14), the Commissioner’s response in

opposition (Doc. 19), and plaintiff’s reply (Doc. 23).

I. Procedural Background

Plaintiff filed her application for DIB in June 2016, alleging disability since May 1, 2015

due to foot surgery, biopsy on thyroid (previous cancerous thyroid), “nontox” uninodular goiter,

degenerative disc disease at C5-C6 with stenosis, degenerative disc disease plus facet

degenerative joint disease at L4-S1, myalgia – myositis, bony exostosis, disorder of bursae and

tendons in shoulder region, C6-C7 radiculitis, neoplasm of uncertain behavior of thyroid gland,

status-post total thyroidectomy, papillary carcinoma, osteoarthritis of the toe joint, trapezius

strain, and chronic pain of both shoulders. (Tr. 257). The application was denied initially and

upon reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing

before administrative law judge (“ALJ”) Renita K. Bivins on November 27, 2018. Plaintiff and

a vocational expert (“VE”) appeared and testified at the ALJ hearing. (Tr. 32-81). On February

22, 2019, the ALJ issued a decision denying plaintiff’s DIB application. (Tr. 15-26). The

Appeals Council denied plaintiff’s request for review and adopted the ALJ’s decision as the

Commissioner’s final decision. (Tr. 1-6). This matter is properly before this Court for review.

II. Analysis

A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).

The impairment must render the claimant unable to engage in the work previously performed or

in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §

423(d)(2).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation

process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or

mental impairment – i.e., an impairment that significantly limits his or her

physical or mental ability to do basic work activities – the claimant is not

disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the

listings in Appendix 1 to Subpart P of the regulations and meets the duration

requirement, the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing his or her

past relevant work, the claimant is not disabled.

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5) If the claimant can make an adjustment to other work, the claimant is not

disabled. If the claimant cannot make an adjustment to other work, the claimant

is disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§

404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four

steps of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548

(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to

perform the relevant previous employment, the burden shifts to the Commissioner to show that

the claimant can perform other substantial gainful employment and that such employment exists

in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th

Cir. 1999).

B. The Administrative Law Judge’s Findings

The ALJ applied the sequential evaluation process and made the following findings of

fact and conclusions of law:

1. The [plaintiff] last met the insured status requirements of the Social Security

Act on September 30, 2018.

2. The [plaintiff] did not engage in substantial gainful activity during the period

from her alleged onset date of May 1, 2015 through her date last insured of

September 30, 2018 (20 CFR 404.1571 et seq.).

3. Through the date last insured, the [plaintiff] had the following severe

impairments: localized osteoarthrosis of the left and right foot with degenerative

joint disease, hallux valgu[s]1, degenerative disc disease, cervical spondylosis

without myelopathy, and right rotator cuff tendinitis (20 CFR 404.1520(c)).

4. Through the date last insured, the [plaintiff] did not have an impairment or

1 “Hallux valgus” is “an abnormal deviation of the big toe away from the midline of the body or toward the

other toes of the foot.” https://www.merriam-webster.com/medical/hallux%20valgus.

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combination of impairments that met or medically equaled the severity of one of

the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, [the ALJ] finds that, through

the date last insured, the [plaintiff] had the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) except she is able to lift

and carry up to 20 pounds occasionally and 10 pounds frequently. She is also

able to stand and/or walk for 6 hours per 8 hour day and sit for 6 hours per 8

[hour] day, with normal breaks. The [plaintiff] can frequently climb ramps or

stairs; never climb ladders, ropes, or scaffolds; occasionally stoop; frequently

kneel; frequently crouch; and occasionally crawl. She must avoid all exposure to

unprotected heights.

6. Through the date last insured, the [plaintiff] was capable of performing past

relevant work as a home health aide (DOT 355.67 4-014, SVP 3, medium work

as generally performed, light work as actually performed). This work, as

actually performed, did not require the performance of work-related activities

precluded by the [plaintiff]’s residual functional capacity (20 CFR 404.1565).

7. The [plaintiff] was not under a disability, as defined in the Social Security Act,

at any time from May 1, 2015, the alleged onset date, through September 30,

2018, the date last insured (20 CFR 404.1520(f)).

(Tr. 17-26).

C. Judicial Standard of Review

Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §

405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by

substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,

478 F.3d 742, 745-46 (6th Cir. 2007).

The Commissioner’s findings must stand if they are supported by “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229

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(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a

preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In

deciding whether the Commissioner’s findings are supported by substantial evidence, the Court

considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

The Court must also determine whether the ALJ applied the correct legal standards in the

disability determination. Even if substantial evidence supports the ALJ’s conclusion that the

plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails

to follow its own regulations and where that error prejudices a claimant on the merits or deprives

the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).

See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was

otherwise supported by substantial evidence where ALJ failed to give good reasons for not

giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).

D. Specific Errors

On appeal, plaintiff alleges that: (1) the ALJ’s finding that plaintiff’s testimony was not

fully credible was not supported by substantial evidence and is contrary to law; (2) the ALJ erred

by failing to find that plaintiff’s postoperative hypothyroidism, obstructive sleep apnea, periodic

limb movement disorder, obesity, and fibromyalgia are severe impairments in this case; (3)

having found that plaintiff’s obesity is a non-severe impairment, the ALJ failed to properly

consider the impact of plaintiff’s obesity on her ability to work as required under SSR 02-01p;

(4) the ALJ failed to properly evaluate plaintiff’s residual functional capacity (“RFC”); and (5)

the ALJ erred by equating activities of daily living and household chores to the ability to perform

substantial gainful work activity on a sustained basis. (Docs. 14 and 23).

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1. The ALJ’s severe impairment/obesity findings (Assignments of Error 2 and 3)2

The Court initially considers plaintiff’s second assignment of error, which challenges the

ALJ’s findings at step two of the sequential evaluation process. Plaintiff alleges the ALJ erred

by failing to include as “severe” impairments her postoperative hypothyroidism, obstructive

sleep apnea, periodic limb movement disorder, obesity, and fibromyalgia. (Doc. 14 at PAGEID

1270). Plaintiff argues that the ALJ’s reasons for finding these impairments do not meet the

definition of “severe” under the regulations - i.e., “they are either well controlled, of recent onset,

unconfirmed by objective medical findings, or do not significantly diminish [plaintiff’s] ability

to perform basic work activities” - are “questionable at best.” (Id. at PAGEID 1270-71, citing

Tr. 18). Plaintiff contends that the ALJ did not address her obesity, and the ALJ discounted the

impact of her fibromyalgia by claiming the symptoms could be attributed to her other conditions.

(Id. at PAGEID 1270). Plaintiff generally alleges that the ALJ’s failure to properly consider all

her impairments “calls into question” the ALJ’s ability to craft an RFC that accurately reflects a

claimant’s ability to engage in work activity. (Id.).

The Commissioner responds that plaintiff has not shown that the ALJ improperly

declined to find obesity and fibromyalgia to be “severe” impairments in her case. (Doc. 19 at

PAGEID 1300-02). The Commissioner contends that even if the ALJ erred by failing to find

certain impairments were severe at step two of the sequential evaluation process, the error was

harmless because the ALJ properly considered all of plaintiff’s impairments, both “severe” and

2 The Court has considered plaintiff’s assignments of error in a different order than plaintiff has presented

them in her statement of errors.

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non-severe, in accordance with the Social Security regulations and rulings when formulating

plaintiff’s RFC. (Id. at PAGEID 1302-03).

An impairment is considered “severe” unless “the [claimant’s] impairment(s) has no

more than a minimal effect on his or her physical or mental ability(ies) to perform basic work

activities.” Social Security Ruling 85-28, 1985 WL 56856, at *3 (1985).3 See also 20 C.F.R.

§ 404.1520(c) (“If you do not have any impairment or combination of impairments which

significantly limits your physical or mental ability to do basic work activities, we will find

that you do not have a severe impairment and are, therefore, not disabled.”). The

claimant’s burden of establishing a “severe” impairment during the second step of the

disability determination process is a “de minimis hurdle.” Higgs v. Bowen, 880 F.2d 860,

862 (6th Cir. 1988) (citations omitted). “Under [this] prevailing de minimis view, 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.” Id. (citing Farris v. Sec’y

of Health and Human Services, 773 F.2d 85, 90 (6th Cir. 1985)).

The ALJ found at step two of the sequential evaluation process that the following

physical impairments were “severe impairments”: localized osteoarthrosis of the left and right

foot with degenerative joint disease, hallux valgus, degenerative disc disease, cervical

spondylosis without myelopathy, and right rotator cuff tendinitis. (Tr. 18). The ALJ found that

3 “Social Security Rulings do not have the force and effect of law, but are ‘binding on all components of the

Social Security Administration’ and represent ‘precedent final opinions and orders and statements of policy and

interpretations’ adopted by the Commissioner.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 272 n. l (6th Cir.

2010) (quoting 20 C.F.R. § 402.35(b)(1)). The Sixth Circuit has refrained from ruling on whether Social Security

Rulings are binding on the Commissioner in the same way as Social Security Regulations but has assumed that they

are. Id. (citing Wilson, 378 F.3d at 549).

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plaintiff also had non-severe impairments of status post thyroidectomy for treatment of thyroid

cancer, postoperative hypothyroidism, obstructive sleep apnea, periodic limb movement

disorder, obesity, and fibromyalgia. (Id.). The ALJ found that these non-severe impairments

were either “well controlled, of recent onset, unconfirmed by objective medical findings, or do

not significantly diminish [plaintiff’s] ability to perform basic work activities.” (Id.). Plaintiff

has not shown that the ALJ committed reversible error at step two of the sequential evaluation

process.

First, plaintiff has not shown that the ALJ erred by failing to find that fibromyalgia was a

severe impairment in this case. Plaintiff alleges that the ALJ assumed the role of a medical

expert by finding that the symptoms of fibromyalgia she experienced could be attributed to

plaintiff’s other conditions. (Doc. 14 at PAGEID 1271). But plaintiff has not pointed to

evidence to show that she has been diagnosed with fibromyalgia and that the medical evidence

establishes fibromyalgia to be a medically determinable impairment (MDI) in this case under

SSR 12-2p, which provides guidance on how the agency develops evidence to establish that a

person has an MDI of fibromyalgia and how the agency evaluates fibromyalgia in disability

claims. SSR 12-2p, 2012 WL 3104869, at *1 (July 25, 2012). SSR 12-2p describes

fibromyalgia as “a complex medical condition characterized primarily by widespread pain in the

joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” SSR 12-

2p, 2012 WL 3104869, at *2. Pursuant to the Ruling, “FM [fibromyalgia] is an MDI when it is

established by appropriate medical evidence.” Id. If a physician diagnoses fibromyalgia, the

agency will “review the physician’s treatment notes to see if they are consistent with the

diagnosis of FM. . . .” Id. The agency will find that a person has an MDI of fibromyalgia if a

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physician diagnosed fibromyalgia and provides the evidence required under the Ruling, and the

physician’s diagnosis is not inconsistent with the other evidence in the individual’s case record.

Id. Under § II.A of the Ruling, the agency “may find that a person has an MDI of FM” if they

meet all three criteria set forth in the Ruling, which include: “2. At least 11 positive tender points

on physical examination . . . which must be found bilaterally (on the left and right sides of the

body) and both above and below the waist . . . [and] 3. Evidence that other disorders that could

cause the symptoms or signs were excluded. . . .” Id. at *2-3.

The ALJ found that (1) the record did not confirm that plaintiff “had the requisite number

of tender point findings” bilaterally and above and below the waist; and (2) “there was no

evidence that medical doctors had excluded other impairments as required in [SSR] 12-2p,

especially considering [plaintiff’s] diagnosis of lumbar DDD; postoperative hallux valgus right

foot; cervical spondylosis without mye[l]opathy and right rotator cuff tendinitis.” (Tr. 18).

Plaintiff has cited no medical evidence to the contrary that demonstrates the required number and

location of tender points. Nor has she pointed to evidence that rules out another medical

condition as the source of her symptoms and links her subjective complaints to fibromyalgia. In

addition, plaintiff has not pointed to evidence in the record that shows she was given a medically

substantiated diagnosis of fibromyalgia or that she received treatment for fibromyalgia from any

medical provider. Absent any such medical evidence, the ALJ did not err by failing to find

fibromyalgia was a severe impairment in this case.

Second, plaintiff argues the ALJ erred by failing to find that she suffers from a severe

impairment of obesity and, once the ALJ found the impairment to be non-severe, by failing to

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properly consider how plaintiff’s obesity impacts her ability to work.4 (Doc. 14 at PAGEID

1270-71; Doc. 23 at PAGEID 1321-22). Plaintiff alleges that her weight of 188 pounds and

height of 5 feet, 6 inches classifies her as “moderately obese,” and it is “clearly reasonable to

conclude that obesity will negatively impact [her] arthritic condition, degenerative joint disease,

degenerative disc disease, cervical spondylosis etc.” (Doc. 23 at PAGEID 1321). Plaintiff

contends that the agency recognizes that these conditions and the symptoms they cause are

impacted by her obesity. (Id. at PAGEID 1322). Plaintiff contends her impacted conditions

include chronic foot and back issues, chronic cervical and shoulder issues, and arthritis of the

back, hands and toes. (Doc. 14 at PAGEID 1272-73).

Plaintiff has not met her burden to show that her obesity is a severe impairment or to

show that the ALJ erred under Social Security Ruling 02-01p, which addresses the evaluation of

obesity in the disability process. SSR 02-01p, 2000 WL 628049 (Sept. 12, 2002). SSR 02-01p

recognizes that obesity “may” affect an individual’s ability to perform the exertional functions of

sitting, standing, walking, lifting, carrying, pushing, and pulling, as well as an individual’s ability

to perform postural functions such as climbing, balancing, stooping, and crouching. Id., at *6

(emphasis added). The Ruling ensures that the Commissioner will consider a claimant’s obesity

in performing steps two through five of the sequential analysis. Id., at *3. SSR 02-01p does not

mandate a particular mode of analysis for an obese claimant. Bledsoe v. Barnhart, 165 F. App’x

408, 411-12 (6th Cir. 2006). “It only states that obesity, in combination with other impairments,

‘may’ increase the severity of the other limitations.” Id. at 412 (quoting SSR 02-01p). See also

4 Plaintiff alleges as the third assignment of error that the ALJ failed to comply with SSR 02-01p by not

properly considering the impact of plaintiff’s obesity on her ability to work. (Doc. 14 at PAGEID 1271-73). The

undersigned considers the third assignment of error here in conjunction with the second assignment of error.

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Young v. Comm’r of Soc. Sec., No. 3:09-cv-1894, 2011 WL 2182869, at *7 (N.D. Ohio June 6,

2011) (“The Sixth Circuit requires the ALJ to mention obesity either expressly or indirectly

where the record includes evidence of obesity’s effects on the claimant’s impairments.”).

In light of the regulations requiring that a claimant “must furnish medical and other

evidence that [the Commissioner] can use to reach conclusions about [the claimant’s] medical

impairment(s) and . . . its effect on [the claimant’s] ability to work on a sustained basis,” 20

C.F.R. § 404.1512, a claimant relying on obesity to establish disability should provide evidence

that obesity affected her ability to work. Snyder v. Comm’r of Soc. Sec., No. 2:10-cv-00821,

2012 WL 27302, at *8 (S.D. Ohio Jan. 5, 2012) report and recommendation adopted, 2012 WL

871202 (S.D. Ohio Mar. 13, 2012) (citing Cranfield v. Comm’r, Soc. Sec., 79 F. App’x 852, 857-

58 (6th Cir. 2003) (finding that even though physician’s reports indicated obesity, the ALJ was

not obligated to address the claimant’s obesity where the claimant failed to provide evidence that

her obesity was a significant impairment that affected her ability to work); May v. Astrue, No.

4:10-cv-1533, 2011 WL 3490186, at *6 (N.D. Ohio June 1, 2011) (holding that the ALJ had no

duty to address claimant’s obesity when, despite a diagnosis of obesity in the record, the

claimant did not carry his burden of demonstrating there were “functional limitations ascribed to

the condition[ ]”)).

Here, the ALJ found that plaintiff suffered from multiple physical impairments, and the

ALJ considered plaintiff’s symptoms and resulting limitations when formulating the RFC.

Plaintiff has not identified any other specific limitations, and she has not pointed to any medical

evidence indicating there are additional functional limitations, imposed by her obesity which the

ALJ should have included in the RFC. Plaintiff simply argues it is reasonable to conclude that

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obesity negatively impacts her other conditions to some unspecified degree and to further assume

that her obesity impacts her functioning to a greater extent than the ALJ found. (Doc. 14 at

PAGEID 1272-73; Doc. 23 at PAGEID 1321-22). But the ALJ was not required to assume in

the absence of evidence supporting plaintiff’s assumptions that obesity exacerbated her other

impairments and imposed greater restrictions than those the ALJ found and incorporated into the

RFC. See SSR 02-01p, 2000 WL 628049, at *6 (the ALJ “will not make assumptions about the

severity or functional effects of obesity combined with other impairments.”).

Even if the ALJ erred by failing to find fibromyalgia, obesity, or any one of the additional

impairments plaintiff mentions - postoperative hypothyroidism, obstructive sleep apnea, and

periodic limb movement disorder - to be a severe impairment in this case, the error was harmless.

“The fact that some of [a claimant’s] impairments were not deemed to be severe at step two is . .

. legally irrelevant” where other impairments are found to be severe. Emard v. Commr. of Soc.

Sec., 953 F.3d 844, 852 (6th Cir. 2020) (quoting Anthony v. Astrue, 266 F. App’x 451, 457 (6th

Cir. 2008)). An ALJ’s failure to find a severe impairment where one exists may not constitute

reversible error where the ALJ determines that a claimant has at least one other severe

impairment and continues with the remaining steps of the disability evaluation. Maziarz v.

Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987).

Here, the ALJ determined that plaintiff’s severe physical impairments included localized

osteoarthrosis of the left and right foot with degenerative joint disease, hallux valgus,

degenerative disc disease, cervical spondylosis without myelopathy, and right rotator cuff

tendinitis. (Tr. 18). The ALJ continued to conduct a meaningful analysis of how plaintiff’s

severe impairments impacted her physical functioning. (Tr. 63-64, 67-74). The ALJ adopted

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these restrictions to account for plaintiff’s functional limitations resulting from her physical

impairments:

[T]hrough the date last insured, the [plaintiff] had the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) except she is able to lift and carry

up to 20 pounds occasionally and 10 pounds frequently. She is also able to stand and/or

walk for 6 hours per 8 hour day and sit for 6 hours per 8 [hour] day, with normal breaks.

The [plaintiff] can frequently climb ramps or stairs; never climb ladders, ropes, or

scaffolds; occasionally stoop; frequently kneel; frequently crouch; and occasionally

crawl. She must avoid all exposure to unprotected heights.

(Tr. 20). Plaintiff has not shown that even if the ALJ was bound to find her non-severe physical

impairments were severe, those impairments imposed any additional functional limitations which

the ALJ failed to include in the RFC finding. Because plaintiff has not shown that the record

supports the imposition of additional functional limitations to account for her obesity,

fibromyalgia, postoperative hypothyroidism, obstructive sleep apnea, or periodic limb movement

disorder, any erroneous categorization of these impairments by the ALJ as severe or non-severe

in this case would be harmless. Cf. Foster v. Bowen, 853 F.2d 483, 488-89 (6th Cir. 1988)

(relevant consideration in disability case is not claimant’s diagnoses, but whether her

impairments impose disabling limitations).

Plaintiff’s second and third assignments of error are overruled.

2. The ALJ’s evaluation of plaintiff’s subjective complaints and consideration of

daily activities (Assignments of Error 1 and 5)5

Plaintiff alleges the ALJ erred in evaluating her subjective complaints and in equating her

activities of daily living and household chores to substantial gainful activity. (Doc. 14 at

5 Because both of these assignments of error challenge the ALJ’s evaluation of plaintiff’s subjective

complaints, the Court has analyzed the allegations of error together. (Doc. 14 at PAGEID 1267-69, 1276-78).

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PAGEID 1267-1269, 1276-78; Doc. 23 at PAGEID 1326-28). Plaintiff argues that her

subjective complaints “must be given full credit” because they are supported by her treating

physicians’ medical findings, and her testimony is not contradicted by the findings of

consultative examiner Dr. Hassan or any other “substantial evidence of record.” (Id. at PAGEID

1269). Plaintiff argues that rather than relying on the objective evidence to find her subjective

complaints were supported and properly analyzing the evidence as a whole, the ALJ “cherry

pick[ed]” findings from the reports that supported her decision. (Id.).

Title 20 C.F.R. § 404.1529 and Social Security Ruling 16-3p, 2016 WL 1119029, *3

(March 16, 2016) describe a two-part process for evaluating an individual’s subjective statements

about symptoms, including pain.6 First, the ALJ must determine whether a claimant has a

medically determinable physical or mental impairment that can reasonably be expected to

produce the symptoms alleged; second, the ALJ must evaluate the intensity, persistence, and

functional limitations of those symptoms by considering objective medical evidence and other

evidence, including: (1) daily activities; (2) the location, duration, frequency, and intensity of

pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage,

effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; (5)

treatment, other than medication, received for relief of pain or other symptoms; (6) any measures

used to relieve pain or other symptoms; and (7) other factors concerning functional limitations

and restrictions due to pain or other symptoms. See also 20 C.F.R. § 404.1529(c)(3). The ALJ’s

6 SSR 16-3p, 2016 WL 1119029, which “provides guidance about how [the SSA] evaluate[s] statements

regarding the intensity, persistence, and limiting effects of symptoms,” superseded SSR 96-7p and became

applicable to decisions issued on or after March 28, 2016. See SSR 16-3p, 2017 WL 5180304 (October 25, 2017)

(clarifying applicable date of SSR 16-3p).

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assessment of a claimant’s subjective complaints and limitations must be supported by

substantial evidence and be based on a consideration of the entire record. Rogers, 486 F.3d at

247. The ALJ’s explanation of his decision “must be sufficiently specific to make clear to the

individual and to any subsequent reviewers the weight the adjudicator gave to the individual’s

statements and the reasons for that weight.” Id. at 248.

Plaintiff alleges the ALJ erred by failing to give her testimony about her subjective

complaints full credit because her testimony is “supported by her physicians and the objective

findings that they made.” (Doc. 14 at PAGEID 1269). The only objective medical findings

plaintiff points to are imaging results from 2009 and 2015. (Id. at PAGEID 1268-69). The ALJ

acknowledged abnormal findings from a cervical spine MRI performed in September 2009. (Tr.

21-22, citing Tr. 729). The ALJ noted that plaintiff’s physician, Dr. Paula Ackerman, D.O.,

found she had full strength when she examined plaintiff for complaints of bilateral shoulder pain

of recent onset in April 2015, “though [Dr. Ackerman] referred to a 2009 MRI showing disc

herniations at C4-5, C5-6, and C6-7, as well as multiple areas of foraminal narrowing.” (Tr. 22,

citing Tr. 729, 733). The 2015 MRI results disclosed “[m]ultilevel degenerative changes in the

cervical spine, worse at C5-C6 with central canal stenosis and cord compression and associated

moderate to severe right neuroforaminal narrowing.” (Doc. 14 at PAGEID 1268-69, citing Tr.

358). Plaintiff argues that rather than relying on these objective findings to find her subjective

complaints were supported, the ALJ erroneously gave Dr. Hassan’s opinion “considerable

weight” based in part on its “general” consistency with the record. (Id. at PAGEID 1268).

Plaintiff contends that the consistency of Dr. Hassan’s opinion with the record is “questionable at

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best” given that he found on examination that her cervical spine “was normal,” whereas the

earlier imaging results showed the abnormalities set forth supra. (Id. at PAGEID 1268).

The ALJ did not err by failing to find that plaintiff’s subjective complaints were fully

supported by the objective medical evidence. Nor did the ALJ improperly “cherry pick” the

evidence by choosing to rely on certain medical findings and opinions to resolve various

inconsistencies in the record. Solembrino v. Astrue, No. 1:10-cv-01017, 2011 WL 2115872, at

*8 (N.D. Ohio May 27, 2011) (an ALJ “does not ‘cherry pick’ the evidence merely by resolving

some inconsistencies unfavorably to a [plaintiff]’s position.”). Rather, the ALJ reasonably relied

on the findings and opinions of the consultative examining physician, Dr. Hassan, and the state

agency reviewing physicians to find that the objective medical evidence did not fully support

plaintiff’s allegations of pain and other symptoms.

Dr. Hassan generally concluded that plaintiff “appears to be at least MILDLY impaired”

in her ability to perform numerous basic work activities, but he did not provide a function-by-

function assessment. (Tr. 463). His opinion therefore “do[es] not speak directly to . . . whether

plaintiff’s RFC permitted [her] to work despite her [] impairments.” Bowen v. Comm’r of Soc.

Sec., 478 F.3d 742, 745-46 (6th Cir. 2007) (noting that a treating doctor’s general findings were

relevant on the issue of whether the claimant’s RFC permitted her to work, but they were not

controlling absent a functional capacity assessment). Nonetheless, plaintiff has not shown that

Dr. Hassan’s opinion is inconsistent with the ALJ’s evaluation of plaintiff’s subjective

complaints of pain and other symptoms. See Walters v. Comm’r of Soc. Sec., No. 1:14-cv-481,

2015 WL 1851451, at *11 (S.D. Ohio Apr. 22, 2015), report and recommendation adopted, 2015

WL 5693640 (S.D. Ohio Sept. 29, 2015) (restrictions imposed by the ALJ were not inconsistent

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with physician’s statement that plaintiff’s symptoms “would adversely affect [plaintiff’s] work

capabilities” absent an RFC assessment). To the contrary, Dr. Hassan’s findings on examination

appear to be consistent with the ALJ’s finding that plaintiff had the RFC to perform a limited

range of light work. (Tr. 455-58).

Plaintiff’s main complaints when examined by Dr. Hassan in December 2016 were

lumbar and bilateral foot pain. (Tr. 460-63). He reported that plaintiff “ambulate[d] well” and

“normally,” and she did not appear to have any issues with her gait. (Tr. 461, 463). Dr. Hassan

also reported that plaintiff appeared to be “fairly comfortable when getting around and in the

sitting and supine positions,” “[e]xamination of the cervical spine appeared ‘normal’ externally”

range of motion of the cervical spine was normal, and plaintiff seemed “to be able to move the

neck quite well in all directions.” (Tr. 461, 462, 463) (emphasis added). Shoulders, elbows,

wrists, and hands appeared to be normal, and plaintiff could extend, flex, abduct, adduct, and

rotate both shoulders normally. (Tr. 462). Examination of the hands revealed no abnormalities,

and grip strength appeared to be normal in both hands with plaintiff “able to make a good fist

bilaterally.” (Id.). The knees, ankles, and feet showed no significant abnormalities on

examination. (Id.). The only abnormal finding on examination of the dorsolumbar spine was

mild tenderness in the lumbosacral area. (Tr. 463). Muscle strength was normal in the upper and

lower extremities, and plaintiff could stand on heels and toes. (Id.). She had some difficulty

squatting because of lower back pain. (Id.). Lumbar spine x-rays disclosed “[m]ild degenerative

hypertrophic spurring . . . anteriorly most prominently at L3-4” and no compression fracture.

(Tr. 459). X-rays of the left foot disclosed mild-moderate degenerative changes at the first

“MTP joint” and no fracture. (Id.). Manual muscle testing results and range of motion test

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results were normal. (Tr. 455- 458). Dr. Hassan’s impression was chronic pain in both feet-

degenerative joint disease; lumbar pain-degenerative joint disease; status-post thyroidectomy for

thyroid cancer (no residual cancer); and status-post bilateral foot surgery for arthritis. (Tr. 463).

Dr. Hassan opined that plaintiff’s “ability to perform work-related activities such as bending,

stooping, lifting, walking, crawling, squatting, carrying and traveling as well as pushing and

pulling heavy objects appears to be at least MILDLY impaired due to the objective findings”

described in his report. (Id.).

Plaintiff has not pointed to any medical evidence or opinion that is inconsistent with Dr.

Hassan’s opinions and assesses greater limitations which the ALJ omitted from the RFC finding.

Dr. Hassan found that “[e]xamination of the cervical spine appears normal” in December 2016.

(Tr. 462). The ALJ was not required to reject his examination findings based on the 2009 MRI

that was performed nearly six years earlier or the 2015 MRI (Tr. 358, 728-29), neither of which

was necessarily inconsistent with Dr. Hassan’s examination findings.

In addition, no treating physician provided a functional assessment, and Dr. Hassan’s

largely normal examination findings and opinion that plaintiff was “at least” mildly impaired in

her ability to perform basic activities do not appear to be materially inconsistent with the

assessments of the non-examining state agency physicians, which the ALJ gave “considerable

weight.” (Tr. 133-34, 145-48). The state agency physicians reviewed the record in December

2016 and on reconsideration in April 2017 and found that plaintiff was able to lift/carry 20

pounds occasionally and 10 pounds frequently, stand/walk for a total of six hours in an 8-hour

workday, and sit for about 6 hours in an 8-hour workday. (Tr. 133). They limited plaintiff to

frequently climbing ramps/stairs, crouching, and kneeling and occasionally climbing ladders/

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ropes/scaffolds and stooping/crawling. (Tr. 134). The ALJ incorporated their assessment of

plaintiff’s functioning into the RFC finding and further restricted plaintiff to never climbing

ladders, ropes, or scaffolds and avoiding all exposure to unprotected heights. (Tr. 20). Plaintiff

has not shown that the ALJ erred in crediting the state agency reviewing physicians’ medical

opinions, whose assessments the ALJ was bound to consider, and declining to assess greater

limitations based on plaintiff’s subjective complaints of more debilitating pain and symptoms.

See Molebash v. Berryhill, No. 2:16-cv-869, 2017 WL 3473816, at *4 (S.D. Ohio Aug. 14,

2017), report and recommendation adopted sub nom. Molebash v. Commr. of Soc. Sec., 2017

WL 3769353 (S.D. Ohio Aug. 29, 2017) (state agency medical consultants “are highly qualified

and experts in Social Security disability evaluation” whose opinions the ALJ must consider in

accordance with the regulations); see also 20 C.F.R. § 404.1513a.

Plaintiff also claims that the ALJ improperly equated her ability to drive and perform

other daily activities with the ability to perform substantial gainful activity. (Doc. 1276-78; Doc.

23 at PAGEID 1326-28; see SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996) (“Ordinarily,

[RFC] is an assessment of an individual’s ability to do sustained work-related physical and

mental activities in a work setting on a regular and continuing basis,” meaning “8 hours a day,

for 5 days a week, or an equivalent work schedule.”). Plaintiff alleges that under the ALJ’s

reasoning, any claimant who drives would not qualify for disability benefits, which is not a valid

conclusion.

“Although the ability to do household [and other] chores is not direct evidence of an

ability to do gainful work” under 20 C.F.R. § 404.1572, “[a]n ALJ may . . . consider household

and social activities engaged in by the claimant in evaluating a claimant’s assertions of pain or

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ailments.” Keeton v. Commr. of Soc. Sec., 583 F. App’x 515, 532 (6th Cir. 2014) (quoting

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 532 (6th Cir. 1997)). See also Blacha v. Sec. of

Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990) (“[A]n ALJ may consider household

and social activities in evaluating complaints of disabling pain.”); Masters v. Comm’r of Soc.

Sec., 707 F. App’x 374, 379 (6th Cir. 2017) (“The ALJ reasonably noted that despite her

symptoms, [the plaintiff] remains able to perform routine, daily tasks that he viewed as

inconsistent with her allegations that her pain and symptoms were completely debilitating);

O’Brien v. Commr. of Soc. Sec., 819 F. App’x 409, 417 (6th Cir. 2020) (“[T]he ALJ reasonably

concluded that [the plaintiff’s] subjective evaluations of his physical abilities was inconsistent

with his daily activities, his recent part-time work as a ‘clean-up man,’ his golf trip and cross-

country trip to and from Colorado, his shoveling of snow, and his carpet installation,” and

substantial evidence supported the ALJ’s conclusion that the plaintiff experienced “mild to

moderate functional limitations in his ability to perform basic work activities . . . .”).

Here, the ALJ found that plaintiff’s complaints of pain and functional limitations were

inconsistent with her daily activities, including driving about three times per week for 30 minutes

at a time, which requires the “significant physical abilities” of sitting in one place for a period of

time, turning the steering wheeling, moving one’s body so as to see in all directions and angles,

and operating foot controls; bagging her own groceries; dressing herself and showering;

shopping; cooking simple meals; handwashing dishes; and doing laundry. (Tr. 22). The ALJ

appears to have placed undue emphasis on the physical and mental functional abilities required

to drive a car when evaluating plaintiff’s subjective complaints. Nonetheless, assuming the ALJ

erred by relying on plaintiff’s ability to drive for 30 minutes at a time, the ALJ did not commit

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reversible error by doing so. The Sixth Circuit has held that a harmless error analysis applies and

the ALJ’s decision will be upheld where an adverse finding is made based in part on invalid

reasons, so long as substantial evidence remains to support the decision. Johnson v. Commr. of

Soc. Sec., 535 F. App’x 498, 507 (6th Cir. 2013) (citing Ulman v. Comm’r of Soc. Sec., 693 F.3d

709, 714 (6th Cir. 2012)). The Court does not have a “substantial doubt” as to whether the ALJ

would have made the same ultimate finding if she had not factored plaintiff’s driving ability so

heavily into her evaluation of plaintiff’s subjective complaints. See Keeton, 583 F. App’x at 524.

Thus, assuming the ALJ’s reliance on plaintiff’s ability to drive for 30 minutes at a time was

invalid, this specific finding was harmless error.

Plaintiff’s first and fifth assignments of error are overruled.

3. The ALJ’s formulation of the RFC (Assignment of Error 4)

Plaintiff additionally argues that the ALJ’s RFC determination was not supported by

substantial evidence. The ALJ is vested with the responsibility for assessing a claimant’s

functional capacity based on the relevant medical and other evidence. 20 C.F.R. §§

404.1527(d)(2), 404.1545(a)(3), 404.1546. “[T]he threshold for such evidentiary sufficiency is

not high.” O’Brien, 819 F. App’x at 416 (quoting Biestek v. Berryhill, --U.S.--, 139 S. Ct. 1148,

1154 (2019)). “[T]he decision cannot be overturned if substantial evidence, or even a

preponderance of the evidence, supports the claimant’s position, so long as substantial evidence

also supports the conclusion reached by the ALJ.” Id. (quoting Jones v. Comm’r of Soc. Sec.,

336 F.3d 469, 477 (6th Cir. 2003)). The plaintiff “bears the burden of demonstrating a RFC

more restrictive than that determined by the ALJ.” Jordan v. Comm’r of Soc. Sec., 548 F.3d 417,

423 (6th Cir. 2008).

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Plaintiff has not shown that the ALJ erred by failing to fully account for her physical

impairments and resulting limitations in the RFC finding or to explain the reasons for her

finding. The ALJ determined that plaintiff had the RFC to perform a limited range of light work.

This RFC incorporated the assessments of the state agency reviewing physicians, who opined

that plaintiff could lift/carry and push/pull up to 20 pounds occasionally and 10 pounds

frequently; stand/walk approximately four hours in an eight-hour workday; and sit approximately

six hours in an eight-hour workday. (Tr. 133, 146). The ALJ was not required to incorporate

any specific restrictions into the RFC finding to account for consultative examining physician

Dr. Hassan’s opinion, which did not include a functional capacity assessment. No other medical

source opined that plaintiff had functional limitations that precluded her from performing a range

of light work. And although plaintiff testified that she is unable to work because of pain and

symptoms from her impairments, the ALJ did not commit reversible error in discounting

plaintiff's subjective complaints for the reasons discussed above. Plaintiff has not carried her

burden to show that the evidence before the ALJ required the inclusion of greater limitations

than those the ALJ found.

The fifth assignment of error is overruled.

IT IS THEREFORE ORDERED THAT:

The decision of the Commissioner is AFFIRMED and this case is closed on the docket

of the Court.

Date: 9/28/2021 Harn Ke Rethion

Karen L. Litkovitz

United States Magistrate Judge

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