Huffstetler v. Social Security Administration, Commissioner of

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

MARK S. HUFFSTETLER, )

)

Plaintiff, )

)

v. ) No. 3:18-CV-210-DCP

)

ANDREW M. SAUL,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal

Rules of Civil Procedure, and the consent of the parties [Doc. 15].

Now before the Court is Plaintiff’s Motion for Summary Judgment and Memorandum in

Support [Docs. 16 & 17] and Defendant’s Motion for Summary Judgment and Memorandum in

Support [Docs. 23 & 24]. Mark S. Huffstetler (“Plaintiff”) seeks judicial review of the decision

of the Administrative Law Judge (“the ALJ”), the final decision of Defendant Andrew M. Saul

(“the Commissioner”). For the reasons that follow, the Court will GRANT IN PART Plaintiff’s

motion and DENY the Commissioner’s motion.

I. PROCEDURAL HISTORY

On June 12, 2014, Plaintiff protectively filed an application for disability insurance

benefits and supplemental security income benefits pursuant to Titles II and XVI of the Social

Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq., claiming a period of disability that began

1 Andrew M. Saul was sworn in as the Commissioner of Social Security on June 17, 2019,

during the pendency of this case. Therefore, pursuant to Federal Rule of Civil Procedure 25(d),

Andrew M. Saul is substituted as the Defendant in this case.

on June 1, 2013. [Tr. 11, 199–213]. After his application was denied initially and upon

reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 114]. A hearing was held on

March 21, 2017. [Tr. 40–56]. On July 21, 2017, the ALJ found that Plaintiff was not disabled.

[Tr. 11–22]. The Appeals Council denied Plaintiff’s request for review on April 9, 2018 [Tr. 1–

5], making the ALJ’s decision the final decision of the Commissioner.

Having exhausted his administrative remedies, Plaintiff filed a Complaint with this Court

on May 30, 2018, seeking judicial review of the Commissioner’s final decision under Section

405(g) of the Social Security Act. [Doc. 2]. The parties have filed competing dispositive motions,

and this matter is now ripe for adjudication.

II. ALJ FINDINGS

The ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social

Security Act through September 30, 2013.

2. The claimant has not engaged in substantial gainful activity since

June 1, 2013, the alleged onset date (20 CFR 404.1571 et seq. and

416.971 et seq.).

3. The claimant has the following severe impairments: peripheral

neuropathy; hypertension; status post cerebellar hemorrhage;

osteoarthritis; persistent depressive disorder; social anxiety

disorder; and unspecified trauma and stressor related disorder (20

CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of

impairments that meets or medically equals the severity of one of

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

(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925

and 416.926).

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) and

416.967(b) except that the claimant should avoid extreme cold; can

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frequently (two-thirds of the workday) deal with people and change;

and can concentrate for at least two hours at a time.

6. The claimant is unable to perform any past relevant work (20

CFR 404.1565 and 416.965).

7. The claimant was born on November 9, 1965 and was 47 years

old, which is defined as a younger individual age 18-49, on the

alleged disability onset date. The claimant subsequently changed

age category to closely approaching advanced age (20 CFR

404.1563 and 416.963).

8. The claimant has at least a high school education and is able to

communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination

of disability because using the Medical-Vocational Rules as a

framework supports a finding that the claimant is “not disabled,”

whether or not the claimant has transferrable job skills (See SSR 82-

41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience,

and residual functional capacity, there are jobs that exist in

significant numbers in the national economy that the claimant can

perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the

Social Security Act, from September 16, 2014, through the date of

this decision (20 CFR 404.1520(g) and 416.920(g)).

[Tr. 14–22].

III. STANDARD OF REVIEW

When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision

was reached through application of the correct legal standards and in accordance with the

procedure mandated by the regulations and rulings promulgated by the Commissioner, and

whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,

581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,

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544 (6th Cir. 2004).

Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it

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

Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It

is immaterial whether the record may also possess substantial evidence to support a different

conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the

case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).

The substantial evidence standard is intended to create a “‘zone of choice’ within which the

Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,

773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the

Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of

credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).

On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.

Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).

IV. DISABILITY ELIGIBILITY

“Disability” means an individual cannot “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.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will only be

considered disabled:

if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the

national economy, regardless of whether such work exists in the

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immediate area in which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).

Disability is evaluated pursuant to a five-step analysis summarized as follows:

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

2. If claimant is not doing substantial gainful activity, his

impairment must be severe before he can be found to be disabled.

3. If claimant is not doing substantial gainful activity and is

suffering from a severe impairment that has lasted or is expected to

last for a continuous period of at least twelve months, and his

impairment meets or equals a listed impairment, claimant is

presumed disabled without further inquiry.

4. If claimant’s impairment does not prevent him from doing his

past relevant work, he is not disabled.

5. Even if claimant’s impairment does prevent him from doing his

past relevant work, if other work exists in the national economy that

accommodates his residual functional capacity (“RFC”) and

vocational factors (age, education, skills, etc.), he is not disabled.

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).

A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is

“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§

404.1520(a)(4) and -(e), 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his

limitations. 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1).

The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.

The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must

prove that there is work available in the national economy that the claimant could perform. Her

v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,

146 (1987)).

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V. ANALYSIS

Plaintiff asserts that the ALJ’s disability decision is not supported by substantial evidence

in several regards. First, Plaintiff maintains that the ALJ improperly found that his carpal tunnel

syndrome was not a medically determinable impairment at step two of the disability determination.

[Doc. 17 at 3–7]. Next, Plaintiff alleges that the ALJ’s RFC determination is not supported by

substantial evidence because the ALJ failed to appropriately consider his need for a cane or walker,

or explain why any limitations related to his need for a cane or walker were not included in the

RFC. [Id. at 7–12]. Lastly, Plaintiff claims that the ALJ failed to account for mental limitations

set forth in the opinions of consultative examiner Patricia A. Maffeo, Ph.D., and nonexamining

state agency consultant, Jayne Dubois, Ph.D., despite affording significant weight to their

opinions. [Id. at 12–18].

A. ALJ’s Step Two Determination

Plaintiff asserts that the ALJ erred when she failed to find that his carpal tunnel syndrome

was a medically determinable impairment at step two of the disability determination, as well as

that substantial evidence supports a finding that his carpal tunnel syndrome was also a severe

impairment. [Doc. 17 at 4]. Therefore, Plaintiff claims that the ALJ further erred by “failing to

continue to consider this impairment beyond step [two] of the sequential evaluation process.” [Id.].

The Commissioner maintains that the ALJ properly considered Plaintiff’s complaints of

hand pain by finding Plaintiff’s peripheral neuropathy, osteoarthritis, and the effects of Plaintiff’s

stroke to be severe impairments. [Doc. 24 at 8]. Additionally, the Commissioner notes that the

ALJ found several severe impairments at step two, and continued to review Plaintiff’s carpal tunnel

syndrome in the RFC determination. [Id. at 9].

At step two, the ALJ is required to consider whether Plaintiff’s alleged impairments

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constitute “medically determinable” impairments. See 20 C.F.R. §§§ 404.1508; 416.920(a)(4)(ii);

404.1520(a)(4)(ii). A medically determinable impairment “must result from anatomical,

physiological, or psychological abnormalities which can be shown by medically acceptable

clinical and laboratory diagnostic techniques,” and “must be established by medical evidence

consisting of signs, symptoms, and laboratory findings, not only by [the claimant’s] statement of

symptoms.” 20 C.F.R. §§ 404.1508; 416.908. Further, an impairment must meet the durational

requirement, meaning, “it must have lasted or must be expected to last for a continuous period of

at least 12 months.” 20 C.F.R. § 404.1509. Lastly, “[i]f an alleged impairment is not medically

determinable, an ALJ need not consider that impairment in assessing the RFC.” See Jones v.

Comm’r of Soc. Sec., No. 3:15-CV-00428, 2017 WL 540923, at *6 (S.D. Ohio Feb. 10, 2017)

(internal citations omitted).

Additionally, to be found disabled, “the ALJ must find that the claimant has a severe

impairment or impairments” at step two. Farris v. Sec’y of Health & Human Servs., 773 F.2d 85,

88 (6th Cir. 1985). An impairment, or combination of impairments, will be found severe if the

impairment(s) “significantly limit[ ] [a claimant’s] physical or mental ability to do basic work

activities.” 20 C.F.R. § 416.920(c). The step two determination is “a de minimis hurdle” in that

“an impairment will be considered not severe only if it is a slight abnormality that minimally

affects work ability regardless of age, education, and experience.” Higgs v. Brown, 880 F.2d 860,

862 (6th Cir. 1988) (citing Farris, 773 F.2d at 90).

During step two of the disability determination, the ALJ failed to explicitly designate

whether she found Plaintiff’s carpal tunnel syndrome to be a severe impairment, a medically

determinable—but nonsevere—impairment, or a non-medically-determinable impairment.

However, “[c]ourts in this district have recognized generic or broad terminology to encompass

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more specific diagnoses” when reviewing an ALJ’s consideration of severe impairments. See

Cartwright v. Saul, No. 3:18-CV-244-HBG, 2019 WL 4248894, at *4 (E.D. Tenn. Sept. 6, 2019).

“Peripheral neuropathy can affect one nerve (mononeuropathy), two or more nerves in different

areas (multiple mononeuropathy) or many nerves (polyneuropathy). Carpal tunnel syndrome is an

example of mononeuropathy.” Peripheral Neuropathy, Mayo Clinic,

https://www.mayoclinic.org/diseases-conditions/peripheral-neuropathy/symptoms-causes/syc-

20352061 (last visited September 23, 2019), cited with approval in, Bruce W. v. Saul, No. 1:18-

CV-02751-MJD-SEB, 2019 WL 2559544, at *3 (S.D. Ind. June 20, 2019) (finding the ALJ

considered the plaintiff’s carpal tunnel syndrome as a severe impairment where the ALJ found that

the plaintiff’s peripheral neuropathy was a severe impairment, as “[n]either party recognizes that

peripheral neuropathy is a general diagnostic term that includes carpal tunnel syndrome”).

Accordingly, the Court finds that the ALJ’s determination that Plaintiff’s peripheral neuropathy

constituted a severe impairment appropriately encompassed her consideration of Plaintiff’s carpal

tunnel syndrome as a medically determinable impairment at step two.

Further, it is well settled that the ALJ’s failure to identify some impairments as “severe” is

harmless where the ALJ continues the disability determination and considers both severe and

nonsevere impairments at subsequent steps of the sequential evaluation as required by the

regulations. See Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007) (“And when an ALJ

considers all of a claimant’s impairments in the remaining steps of the disability determination, an

ALJ’s failure to find additional severe impairments at step two ‘[does] not constitute reversible

error.’”) (quoting Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987));

Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801, 803 (6th Cir. 2003) (“Because the ALJ found

that Pompa had a severe impairment at step two of the analysis, the question of whether the ALJ

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characterized any other alleged impairment as severe or not severe is of little consequence.”).

Here, in the disability decision, the ALJ reviewed Plaintiff’s complaints of hand and foot

pain, including detailing a May 26, 2016 EMG/nerve conduction study of Plaintiff’s bilateral upper

and lower extremities, which was “consistent with bilateral carpal tunnel syndrome, bilateral ulnar

neuropathy, and bilateral lower extremity sensorimotor polyneuropathy.” [Tr. 17]; see [Tr. 407,

441, 612]. Therefore, regardless of whether the ALJ erred by failing to include Plaintiff’s carpal

tunnel syndrome as a separate impairment at step two, the Court finds that the ALJ found that

Plaintiff had several severe impairments, and proceeded to examine the effect of Plaintiff’s carpal

tunnel syndrome in the RFC determination. See, e.g., Bruce W., 2019 WL 2559544, at *3

(“Regardless of whether the ALJ found carpal tunnel syndrome to be a severe impairment at Step

Two, the Court does not find that the ALJ ignored the evidence related to the impairment at the

subsequent steps of the sequential evaluation process.”); Negron v. Comm’r of Soc. Sec., No. 3:14-

CV-00852, 2017 WL 2546336, at *11 (M.D. Tenn. June 13, 2017) (“Also, the fact that some of a

claimant’s diagnosed impairments may have gone unmentioned at the step two severity

determination is ‘legally irrelevant.’”) (citing Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir.

2008)); Cavacas v. Comm’r of Soc. Sec., No. 2:12-CV-234, 2013 WL 3811615, at *5 (D. Vt. July

22, 2013) (“But even assuming the ALJ’s failure to discuss Cavacas’s syncope at step two was

error, the error was harmless. At step two, the ALJ identified other severe impairments . . . and

thus, proceeded with the subsequent steps of the sequential evaluation.”). As any potential error

at step two would be harmless, Plaintiff’s allegations of error do not constitute a basis for remand.

B. Plaintiff’s Use of a Cane or Walker

Plaintiff asserts that the ALJ failed to appropriately consider his use of a cane or walker in

the RFC determination. First, Plaintiff maintains that the record establishes his need for an

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ambulatory device. [Doc. 17 at 8]. Plaintiff contends that the ALJ improperly failed to include a

limitation related to Plaintiff’s need for an ambulatory assistive device, or explain why such a

limitation was not adopted. [Id. at 10]. Therefore, Plaintiff alleges that the ALJ’s RFC

determination is not supported by substantial evidence because it does not “account for Plaintiff’s

need to ambulate with a cane or walker, or the additional reaching, handling and fingering

limitations inherently associated with Plaintiff’s need to grasp a cane or walker while

standing/walking and performing work-related activities.” [Id. at 8].

The Commissioner responds that the ALJ acknowledged that Plaintiff used a cane

following his September 2016 stroke, but found that he could perform light exertional work

activities. [Doc. 24 at 16]. Additionally, the Commissioner claims that the ALJ properly

considered evidence from the entire relevant period—including gaps in Plaintiff’s treatment and

his reported daily activities—in evaluating his complaints. [Id.].

Plaintiff suffered a stroke on September 3, 2016, and was hospitalized for nearly three

weeks, until September 23, 2016. [Tr. 644–882]. Treatment notes reflect that Plaintiff presented

with an intracranial bleed, and was discharged to home health physical therapy and speech therapy.

[Tr. 657]. Plaintiff points to eleven treatment notes during his hospitalization indicating that he

used a rolling walker to sit, stand, as well as perform physical therapy. [Tr. 814–15, 820, 822,

826, 828, 834, 836, 840, 842, 858, 854]. Further, in addition to Plaintiff’s gait training, on the day

of his discharge, physical therapy records demonstrate that he used a rolling walker to assist in

sitting to standing, as well as static and dynamic standing. [Tr. 812]. However, Plaintiff was also

able to walk 400 feet with the use of his rolling walker. [Tr. 813].

After his discharge from the hospital, Plaintiff was seen by Julie Brewer, M.D., on October

11, 2016, for a follow-up on his cerebrovascular accident, and it was noted that he continued to

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use a walker. [Tr. 895]. Treatment notes reflect that Plaintiff used his walker during his therapy

session on November 1, 2016. [Tr. 901]. During a cardiology appointment with James D. Yates,

M.D., on December 1, 2016, Plaintiff reported “some problems ambulating.” [Tr. 890].

Additionally, during a follow-up neurological appointment for his intracerebral hemorrhage with

Joshua Miller, M.D., on December 13, 2016, Plaintiff reported continued dizziness and trouble

with ambulation, but “[h]e has progressed now to using just a cane instead of a walker.” [Tr. 939].

Further, Dr. Miller noted that Plaintiff has good coordination with upper and lower extremities

upon physical examination, but that he walks with the assistance of a cane. [Id.].

During the administrative hearing, Plaintiff testified that he had been utilizing a walker

since September of 2016, due to his acute intracerebral hemorrhage. [Tr. 46–47]. Plaintiff claimed

that he cannot walk correctly without the help of his walker, and he is “very dizzy all the time.”

[Tr. 47]. Plaintiff testified that he only leaves his apartment to go to the grocery store once a

month, and that he can walk without the help of a cart or his walker for “maybe four minutes,” as

well as that he could stand still for only two minutes before being in pain. [Tr. 52–53].

In the disability decision, the ALJ detailed that “[a]t the hearing, the claimant testified that

he has used a cane since September of 2016 due to dizziness and difficulty walking straight, both

residual effects of a cerebral hemorrhage.” [Tr. 16]. Additionally, the ALJ found that Plaintiff’s

“status post cerebellar hemorrhage” was a severe impairment. [Tr. 14]. The ALJ reviewed that

an examination on September 9, 2016 demonstrated that Plaintiff had good movement of his four

limbs and intact sensation. [Tr. 17]. However, the ALJ noted that a CT scan of Plaintiff’s head

performed on December 13, 2016 showed “hypoattenuation/developing encephalomalacia and

intraventricular hemorrhage.” [Id.]; see [Tr. 907].

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Social Security Ruling 96-9p provides the operative law on this point:

Medically required hand-held assistive device: To find that a

hand-held assistive device is medically required, there must be

medical documentation establishing the need for a hand-held

assistive device to aid in walking or standing, and describing the

circumstances for which it is needed (i.e., whether all the time,

periodically, or only in certain situations; distance and terrain; and

any other relevant information). The adjudicator must always

consider the particular facts of a case.

1996 WL 374185, at *7 (July 2, 1996). The Sixth Circuit has explained that unless a cane or other

assistive device is found to be a necessary device, it will not be considered an exertional limitation

that reduces a claimant’s ability to work. Carreon v. Massanari, 51 F. App’x 571, 575 (6th Cir.

2002). “SSR 96–9p requires medical documentation of the need for the assistive device, not just

a suggestion by a doctor relating to a claimant’s continued use of an assistive device that the

claimant purchased on his or her own.” Perry v. Berryhill, No. 1:16-CV-2970, 2018 WL 1393275,

at *4 (N.D. Ohio Mar. 20, 2018); see Parrish v. Berryhill, No. 1:16-CV-1880, 2017 WL 2728394,

at *12 (N.D. Ohio June 8, 2017) (“While there are some indications in the medical records that

Plaintiff was using a cane, this is insufficient to establish that the cane was medically required.”)

(collecting cases), report and recommendation adopted by, 2017 WL 2720332 (N.D. Ohio June

23, 2017).

However, in the present case, the ALJ did not properly apply Social Security Ruling 96-

9p, as the ALJ did not determine whether Plaintiff’s assistive device was medically necessary.

Although Plaintiff fails to point to an initial prescription of an ambulatory device, Plaintiff’s use

of a cane or walker in order to recover from his intracerebral hemorrhage is well-documented

throughout the medical record. Further, Plaintiff’s continued use of a walker is indicated in the

follow-up visits from his cardiac and neurological physicians even after his release from the

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hospital. Plaintiff testified, and the medical record supports, that he continued to suffer dizziness

and difficulty walking straight as the residual effects of his cerebral hemorrhage.

“The consistent reference to the use of a cane (or a walker) . . . is enough to trigger an

obligation on the part of the Commissioner to decide if such use is medically necessary and, if so,

to have included that factor in the RFC analysis.” Penn v. Astrue, No. 2:09–CV–169, 2010 WL

547491, at *6 (S.D. Ohio Feb. 12, 2010); see, e.g., Dow v. Comm’r of Soc. Sec., No. 1:13-CV-493,

2014 WL 4377820, at *5 (S.D. Ohio Sept. 4, 2014) (“Where the use of a walker is part of the

record, the ALJ is obligated to consider whether this factor would have an impact on the plaintiff’s

RFC.”). The Court finds that as “there were multiple references in the medical evidence to the use

of a cane [or walker],” it can be “inferred that such use was more than just a subjective desire of

the claimant.” Penn, 2010 WL 547491, at *6 (citing Rivera v. Astrue, No. CIV.A. 08-1971, 2009

WL 235353, at *5 (E.D. Pa. Jan. 29, 2009)).

The Commissioner asserts that although Plaintiff alleged trouble walking without a walker

since he suffered a stroke in September 2016, “[t]he ALJ examined the evidence and found

Plaintiff’s subjective complaints inconsistent with the record as a whole.” [Doc. 24 at 10]. The

Commissioner notes that the ALJ found significant gaps in Plaintiff’s treatment history, noted

Plaintiff’s generally conservative treatment, reviewed Plaintiff’s daily activities, as well as detailed

the objective medical evidence related to Plaintiff’s hands and feet. [Id. at 10–12]. However,

despite finding Plaintiff’s status post cerebellar hemorrhage to be a severe impairment, the ALJ

failed to delineate Plaintiff’s condition before and after his stroke in examining Plaintiff’s

subjective complaints. Although the Commissioner asserts that the ALJ considered evidence from

the entire relevant period, the provided reasons fail to assess whether Plaintiff’s use of a cane or

walker was a medically necessary device after suffering a stroke. For example, in reviewing

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Plaintiff’s reported daily activities and alleged significant gaps in Plaintiff’s medical treatment, the

ALJ did not examine Plaintiff’s abilities and difficulties walking as a result of his cerebral

hemorrhage.

In the disability decision, the ALJ failed to explicitly detail any conflicting evidence

regarding Plaintiff’s use of an ambulatory device, review whether such a device was medically

necessary, or consider whether Plaintiff’s use of a walker would impact his ability to perform the

jobs identified by the vocational expert (“VE”). Cf. Morrow v. Comm’r of Soc. Sec., No. 1:18-

CV-0403, 2019 WL 1428199, at *12 (N.D. Ohio Mar. 29, 2019) (“The ALJ recognized, in her

recitation of the medical evidence of record, that there was conflicting evidence concerning

claimant’s use of, or need for, a cane.”); Grimes v. Berryhill, No. 3:17-CV-365-TWP-HBG, 2018

WL 2305723, at *5 (E.D. Tenn. Apr. 19, 2018) (“Accordingly, in the absence of medical

documentation explaining the necessity of a cane to support Dr. Butler’s opinion and Dr. Ferluga’s

prescription, in conjunction with Plaintiff’s largely normal examination findings and normal to

mild test results, the Court concludes that substantial evidence supports the ALJ’s finding that

‘there is no reasonable medical necessity for using a cane.’”), report and recommendation adopted

by, 2018 WL 2305704 (E.D. Tenn. May 21, 2018). “Where there is conflicting evidence

concerning the need for a cane, it is the ALJ’s task, and not the Court’s, to resolve conflicts in the

evidence.” Forester v. Comm’r of Soc. Sec., No. 16–CV–1156, 2017 WL 4769006, at *4 (S.D.

Ohio Oct. 23, 2017) (citation and internal quotation marks omitted).

“Accordingly, the ALJ did not indicate that ‘she specifically considered how plaintiff’s use

of a walker would impact [his] ability to perform the lifting/carrying and standing/walking

requirements,’ or ‘fulfill her obligation whether plaintiff’s use of a walker would impact plaintiff’s

ability to perform the jobs identified by the VE.’” Jagdeo v. Berryhill, No. 3:17-CV-469-TWP-

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DCP, 2019 WL 1119363, at *16 (E.D. Tenn. Feb. 19, 2019) (quoting Dow v. Comm’r of Soc. Sec.,

No. 1:13-CV-493, 2014 WL 4377820, at *6 (S.D. Ohio Sept. 4, 2014)), report and

recommendation adopted by, 2019 WL 1119642 (E.D. Tenn. Mar. 11, 2019). On remand, the ALJ

should examine Plaintiff’s need for an assistive device; and if an assistive device is found to be

required, the ALJ should examine the impact of Plaintiff’s need for such device on the jobs

identified by the VE.

C. ALJ’s Treatment of Dr. Maffeo and Dr. Dubois’ Opinions

Plaintiff claims that the ALJ failed to account for mental limitations set forth in Dr. Maffeo

and Dr. Dubois’ opinions, despite affording significant weight to their opinions and finding them

consistent with the medical record. Plaintiff alleges that a “[c]omparison of the opinions of Drs.

Maffeo and Dubois to the RFC demonstrates that they are different in critical aspects, and

specifically that these experts found that Plaintiff has far greater limitations than set forth in the

RFC.” [Doc. 17 at 16].

Dr. Maffeo consultatively examined Plaintiff on April 8, 2015. [Tr. 399]. Dr. Maffeo

noted that Plaintiff appeared moderately to severely depressed, and met at least some of the criteria

for PTSD. [Tr. 401–02]. Dr. Maffeo opined that Plaintiff had no impairment in understanding

and remembering, but that he had a moderate to severe impairment in sustaining concentration and

persistence. [Tr. 402]. When assessing Plaintiff’s ability to sustain concentration and persistence,

Dr. Maffeo noted that Plaintiff made a mistake in performing serial 7s and serial 3s, that he could

spell “world” backwards, but that he reported trouble concentrating in everyday situations. [Id.].

Additionally, Dr. Maffeo opined that Plaintiff had moderate impairment in interacting with others,

as he presented as moderately to severely depressed, gets along with other people, but has

withdrawn from his friends. [Id.]. Lastly, Dr. Maffeo found that Plaintiff had moderate

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impairment in adapting to changes and requirements, noting that Plaintiff’s impaired concentration

may limit his awareness of hazards, as he does not drive due to his license being suspended, and

that “[g]ot sleepy when he did drive,” but that he could make plans independent of others. [Id.].

Dr. Dubois reviewed the evidence of record at the reconsideration level of the agency’s

review on April 20, 2015, and assessed Plaintiff’s mental residual functional capacity. [Tr. 80–

82]. Dr. Dubois found that Plaintiff had sustained concentration and persistence limitations, but

that he was not significantly limited in the abilities to carry out very short and simple instructions,

sustain an ordinary routine without special supervision, work in coordination with or in proximity

to others without being distracted, or make simple-work related decisions. [Tr. 80]. However, Dr.

Dubois opined that Plaintiff was moderately limited in the abilities to carry out detailed

instructions, maintain attention and concentration for extended periods, perform activities within

a schedule, maintain regular attendance, and complete a normal workday and workweek without

interruptions from psychological based symptoms. [Tr. 80–81]. Dr. Dubois found that Plaintiff

could maintain concentration, persistence, and pace for simple and low-level detailed tasks, but

not for detailed or complex tasks, with infrequent interruptions due to his mental health symptoms.

[Tr. 81]. Dr. Dubois also opined that Plaintiff would have infrequent absences due to his mental

health symptoms, would infrequently be unable to complete a normal workday, but that he could

perform at a consistent pace with customary breaks within the assessed restrictions. [Id.].

Dr. Dubois also reviewed Plaintiff’s social interaction limitations, and found that Plaintiff

was moderately limited in the abilities to interact appropriately with the general public, accept

instructions and respond appropriately to criticism from supervisions, and get along with

coworkers or peers. [Tr. 81]. However, Dr. Dubois found that Plaintiff was not significantly

limited in his abilities to ask simple questions or request assistance, maintain socially appropriate

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behavior, and adhere to basic standards of neatness and cleanliness. [Id.]. Therefore, Dr. Dubois

opined that Plaintiff could interact superficially with the general public, coworkers, and

supervisors within the assessed restrictions. [Id.]. Lastly, when assessing Plaintiff’s adaption

limitations, Dr. Dubois opined that Plaintiff could adapt to infrequent change within the applied

restrictions. [Id.].

In the disability decision, the ALJ assigned significant weight to Dr. Maffeo’s opinion,

stating it was “based on an in-person examination of the claimant and is well-supported by the

exam[ination] findings, and is consistent with the medical evidence of record.” [Tr. 19]. The ALJ

also assigned significant weight to Dr. Dubois’ opinion, stating it was “broadly consistent with the

psychological examiner’s opinion and with the overall medical record.” [Tr. 20].

The ALJ alone is tasked with the responsibility of assessing a claimant’s RFC. 20 C.F.R.

§ 416.1546(c). “Although the ALJ may not substitute his opinion for that of a physician, he is not

required to recite the medical opinion of a physician verbatim in his residual functional capacity

finding.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009). Accordingly, the

“ALJ does not improperly assume the role of a medical expert by assessing the medical and non-

medical evidence before rendering a residual functional capacity finding.” Id.

Here, Plaintiff challenges the ALJ’s failure to include limitations related to Plaintiff’s

assessed mental impairments, other than limiting him to frequent dealing with people and change.

Plaintiff claims that the ALJ’s RFC determination is not consistent with assessed moderate to

severe impairment in sustaining concentration and persistence, as well as moderate impairments

in interacting with others and adaption, in Dr. Maffeo’s opinion. Further, Plaintiff challenges the

ALJ’s failure to include assessed limitations to simple and low-level detailed tasks, superficial

contact with others, and that Plaintiff would be infrequently absent due to his mental health

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symptoms, in Dr. Dubois’ opinion. Lastly, Plaintiff claims that the RFC is not supported by the

ALJ’s finding of moderate limitations in interacting with others, concentration, persistence, or

pace, and adaption during step three of the disability decision.2

Ultimately, when an ALJ fails to incorporate all of the limitations opined from a medical

source who received great weight, “it does not follow that the ALJ’s explanation is, therefore,

procedurally inadequate, or that the RFC was not supported by substantial evidence.” Moore v.

Comm’r of Soc. Sec., No. 1:13-CV-00395, 2013 WL 6283681, at *7 (N.D. Ohio Dec. 4, 2013);

see Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 275 (6th Cir. 2015) (“Even where an ALJ

provides ‘great weight’ to an opinion, there is no requirement that an ALJ adopt a state agency

psychologist’s opinions verbatim; nor is the ALJ required to adopt the state agency psychologist’s

limitations wholesale.”) (citing Harris v. Comm’r of Soc. Sec. Admin., No. 1:13–cv–00260, 2014

WL 346287, at *11 (N.D. Ohio Jan. 30, 2014)).

However, Social Security Ruling 96-8p provides that “[i]f the RFC assessment conflicts

with an opinion from a medical source, the adjudicator must explain why the opinion was not

adopted.” 1996 WL 374184, at *7 (July 2, 1996). An “ALJ may not select and discuss only that

evidence that favors his ultimate conclusion, but must articulate, at some minimum level, his

2 While Plaintiff claims that the ALJ’s step three findings are inconsistent with the RFC,

the Court notes that “[t]he limitations identified in the ‘paragraph B’ criteria are not a residual

functional capacity assessment but are used to rate the severity of mental impairments at steps 2

and 3 of the sequential evaluation process.” [Tr. 15]; see Bing v. Comm’r of Soc. Sec., No. 1:15-

cv-826, 2016 WL 4410796, at *5 (W.D. Mich. Aug. 18, 2016) (“That the ALJ did not include a

provision in the RFC that limited Plaintiff from contact with others even though he found

moderate social difficulties at step three does not, in and of itself, constitute reversible error.”);

Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *4 (July 2, 1996) (“The adjudicator must remember

that the limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria are not an RFC

assessment . . . .”).

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analysis of the evidence to allow the appellate court to trace the path of his reasoning.” Lowery v.

Comm’r of Soc. Sec., 55 F. App’x 333, 339 (6th Cir. 2003) (quoting Diaz v. Chater, 55 F.3d 300,

306 (7th Cir. 1995)).

As the Court has already found that Plaintiff’s case should be remanded for the ALJ to

reevaluate the medical necessity of an ambulatory device, on remand, the ALJ should also detail

how the RFC accounts for Plaintiff’s mental impairments, including assessed limitations in social

functioning, maintaining concentration, persistence, or pace, and adaption. See, e.g., Pope v.

Comm’r of Soc. Sec., No. 15-12977, 2016 WL 8115399, at *9 (E.D. Mich. May 19, 2016)

(“Without an explanation of why the ALJ gave great weight to a physician’s opinion, but discarded

portions of it in rendering the RFC finding, the courts must simply assume that the ALJ supported

his decision with substantial evidence . . . This is not a robust foundation for judicial review.”),

report and recommendation adopted by, 2016 WL 4055035 (E.D. Mich. July 29, 2016).

Further, the ALJ should sufficiently explain her reasoning for failing to include any

assessed limitations in a medical opinion to which she assigned significant weight. See Marion v.

Comm’r of Soc. Sec., No. 4:16-cv-11198, 2017 WL 1833122, at *3 (E.D. Mich. May 8, 2017)

(finding “the ALJ’s decision on social functioning lacks clarity” as “the ALJ’s RFC determination

does not address Plaintiff’s significant, well-documented social limitations”); Gonzalez v. Colvin,

No. 1:13-cv-01358, 2014 WL 1333713, at *8 (N.D. Ohio Mar. 28, 2014) (holding that the ALJ

failed to account for Plaintiff’s limitations in social functioning, as “the ALJ did not discuss why

she omitted the ‘occasional superficial interactions’ limitation assigned to Plaintiff by [the

nonexamining] state consultant,” and although the Commissioner argues that “evidence in the

record supports the ALJ’s decision not to include greater limitations with regard to Plaintiff’s

social functioning . . . the ALJ should have analyzed and explained that evidence”). Accordingly,

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the Court finds that upon remand, the ALJ should reconsider Dr. Maffeo and Dr. Dubois’ opinions

in the RFC determination in accordance with the above guidance.

VI. CONCLUSION

Based on the foregoing, Plaintiff's Motion for Summary Judgment [Doc. 16] will be

GRANTED IN PART, and the Commissioner’s Motion for Summary Judgment [Doc. 23] will

be DENIED. This case will be REMANDED to the SSA for the ALJ to appropriately examine

Plaintiff's need for an assistive device; and if an assistive device is found to be required, the ALJ

should examine the impact of Plaintiff’s need for a walker on the jobs identified by the VE.

Additionally, the ALJ should reconsider the opinions of Dr. Maffeo and Dr. Dubois in the RFC

determination.

ORDER ACCORDINGLY. _

Debra C. Poplin □□

United States Magistrate Judge

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