# Kilgore v. Social Security Administration, Commissioner of

> District Court, E.D. Tennessee · March 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10434271

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** March 11, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

SHERRY Y. KILGORE, )
)
Plaintiff, )
)
v. ) No. 1:19-CV-168-DCP
)
ANDREW M. SAUL, )
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. 19 & 20] and Defendant’s Motion for Summary Judgment and Memorandum in
Support [Docs. 21 & 22]. Plaintiff subsequently filed a Reply [Doc. 23] to the Commissioner’s
Motion for Summary Judgment. Sherry Y. Kilgore (“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 May 1, 2017, Plaintiff protectively filed an application for disability insurance benefits
pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., claiming a period of
disability that began on that day. [Tr. 11, 184, 294]. After her application was denied initially and
upon reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 215]. A hearing was held
on October 30, 2018. [Tr. 153–73]. On January 24, 2019, the ALJ found that Plaintiff was not
disabled. [Tr. 11–25]. The Appeals Council denied Plaintiff’s request for review on April 8, 2019
[Tr. 1–7], making the ALJ’s decision the final decision of the Commissioner.
Having exhausted her administrative remedies, Plaintiff filed a Complaint with this Court

on June 6, 2019, seeking judicial review of the Commissioner’s final decision under Section 405(g)
of the Social Security Act. [Doc. 1]. 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 last met the insured status requirements of the
Social Security Act on December 31, 2021.

2. The claimant did not engage in substantial gainful activity since
May 1, 2017, the alleged onset date (20 CFR 404.1571 et seq.).

3. Through the date last insured, the claimant had the following
severe impairments: degenerative joint disease; osteoarthritis;
patella alta of the left knee; migraine headaches; anemia; iron
deficiency; B12 deficiency; bipolar disorder; generalized anxiety
disorder and panic disorder (20 CFR 404.1520(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).

5. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) except: no work with the
public; simple, routine, repetitive tasks; workplace change should
occur infrequently.

6. The claimant is unable to perform any past relevant work (20
CFR 404.1565).

7. The claimant was born on August 3, 1970, and was 46 years old,
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which is defined as a younger individual age 45-49, on the alleged
disability onset date (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).

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 transferable 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 could
have performed (20 CFR 404.1569 and 404.1569(a)).

11. The claimant was not under a disability, as defined in the Social
Security Act, from May 1, 2017, through the date of this decision
(20 CFR 404.1520(g)).

[Tr. 13–24].

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,
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
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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
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.

§§ 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.
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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. §§ 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)).
V. ANALYSIS
Plaintiff asserts that the ALJ’s disability decision is not supported by substantial evidence
in several regards. First, Plaintiff claims that the ALJ improperly failed to include sufficient mental
5
limitations in the RFC determination to account for her mental impairments. Next, Plaintiff asserts
that the ALJ erred by failing to properly consider the medical record regarding her headaches,
including a submitted migraine log. Plaintiff alleges that the ALJ also failed to properly address
or account for significant assessed limitations from her treating sources. Here, Plaintiff claims that

the ALJ failed to appropriately assess the medical opinions of record in light of the new applicable
regulations. Additionally, Plaintiff argues that the ALJ improperly mischaracterized the medical
record regarding her bladder and urinary impairments. Lastly, Plaintiff maintains that the ALJ
failed to properly evaluate her orthopedic impairments, and that newly submitted evidence to the
Appeals Council demonstrates that she continued to have significant difficulties with her right foot
injury. The Court will review Plaintiff’s allegations of error in turn.
A. Mental Limitations in the RFC Determination
Plaintiff maintains that the ALJ improperly failed to include any limitations regarding her
ability to interact with coworkers and supervisors or her ability to sustain concentration,
persistence, or pace. Plaintiff further claims that the lack of “sufficient mental limitations” is

inconsistent with the ALJ’s finding that she had moderate limitations in interacting with others, as
well as maintaining concentration, persistence, or pace. [Doc. 20 at 8]. Plaintiff also points to the
ALJ’s finding of bipolar disorder, generalized anxiety disorder, and panic disorder as severe
impairments. Lastly, Plaintiff notes that the ALJ found the opinion of Rebecca Sweeney, PhD,
the nonexamining state agency physician, persuasive, but the ALJ subsequently failed to include
the mental health limitations assessed in Dr. Sweeney’s opinion.1

1 In the disability decision, the ALJ noted that he considered the opinions of the
nonexamining state agency physicians who reviewed the evidence of record at the initial and
reconsideration levels of the agency’s review, but that he “has found their physical findings to be
partially persuasive.” [Tr. 22]. However, the ALJ specifically noted that he “found the mental
6
The Commissioner responds that the ALJ properly evaluated Plaintiff’s mental functioning
in the disability decision and was not required to include all limitations set forth in Dr. Sweeney’s
opinion. Additionally, the Commissioner states that Plaintiff has failed to cite to any supporting
authority for her claim that the ALJ’s finding of moderate limitations at Step Three therefore

required him to adopt additional, specific limitations in the RFC determination. The
Commissioner also claims, however, that the RFC determination did in fact include limitations
relating to Plaintiff’s ability to concentrate. See [Doc. 22 at 15–16].
In the disability decision, the ALJ found at Step Three that Plaintiff was moderately limited
in all four areas of mental functioning (or the paragraph B criteria). [Tr. 15]. As previously stated,
the ALJ also found that Plaintiff had the residual functional capacity to perform sedentary work,
except for no work with the public, infrequent workplace changes, and simple, routine, and
repetitive tasks. [Tr. 16].
Initially, “Plaintiff’s argument—that an ALJ’s findings at Step Three, which address
whether a claimant meets the requirements of a given Listing, must be incorporated into the RFC—

is unsupported by case law.” Hayman v. Berryhill, No. 3:16-cv-1998, 2017 WL 9476860, at *9
(N.D. Ohio Oct. 30, 2017). “The RFC is a subsequent determination that is distinct and separate
from Step 3.” Shinlever v. Berryhill, No. 3:15-CV-371-CCS, 2017 WL 2937607, at *4 (E.D. Tenn.
July 10, 2017) (citing Turbeville v. Colvin, No. 1:12-CV-061, 2014 WL 6605483, at *10 (M.D.
Tenn. Nov. 19, 2014) (“[Step Three and the RFC] are separate steps and a finding at one step does
not necessarily equate to the same finding being made at a later step.”)); see also Soc. Sec. Rul.
96-8p, 1996 WL 374184, at *4 (July 2, 1996) (“The adjudicator must remember that the limitations

health related findings at Exhibit 3A”—Dr. Sweeney’s opinion—“to be persuasive as moderate
limitations are consistent with the overall record in this case.” [Id.].
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identified in the ‘paragraph B’ and ‘paragraph C’ criteria are not an RFC assessment . . . .”).
Next, with respect to Plaintiff’s argument regarding her ability to sustain concentration,
persistence, or pace, this issue has been extensively discussed by the Sixth Circuit—although
Plaintiff failed to cite any case law in support of her argument. In Ealy v. Commissioner of Social

Security, the Sixth Circuit concluded that an RFC and hypothetical question to a VE that included
the limitations of “simple repetitive tasks and instruction” failed to accurately represent a medical
opinion that assessed limitations of “simple, repetitive tasks [for] [two-hour] segments over an
eight-hour day where speed was not critical.” 594 F.3d 504, 516 (6th Cir. 2010). As later clarified
in Smith-Johnson v. Comm’r of Soc. Sec., 579 F. App’x 426 (6th Cir. 2014), the problem in Ealy
was that the RFC and hypothetical question “truncated the doctor’s specific restrictions.” Id. at
436–37. Distinguishing Ealy, the Smith-Johnson Court found “the limitation to simple, routine,
and repetitive tasks adequately conveys Smith–Johnson’s moderately-limited ability ‘to maintain
attention and concentration for extended periods’” because “[u]nlike in Ealy, Dr. Kriauciunas did
not place any concrete functional limitations on her abilities to maintain attention, concentration,

or pace when performing simple, repetitive, or routine tasks.” Id. at 437 (emphasis added).
Further, the Sixth Circuit has more recently held that “[c]ase law in this Circuit does not support a
rule that a hypothetical providing for simple, unskilled work is per se insufficient to convey
moderate limitations in concentration, persistence and pace.” Kepke v. Comm’r of Soc. Sec., 636
F. App’x 625, 635 (6th Cir. 2016).
Here, Plaintiff fails to point to any specific limitations assessed in Dr. Sweeney’s opinion
regarding her ability to sustain concentration, persistence, or pace. Dr. Sweeney examined the
evidence of record regarding Plaintiff’s mental impairments at the reconsideration level of the
agency’s review on October 27, 2017, and found that her severe mental impairments included
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depressive, bipolar and related disorders, as well as anxiety and obsessive-compulsive disorders.
[Tr. 194]. Dr. Sweeney then considered the paragraph B criteria and opined that Plaintiff was
moderately impaired in all four areas, including interacting with others and concentrating,
persisting, or maintaining pace. [Tr. 195]. Specifically, Dr. Sweeney found that Plaintiff was not

significantly limited in the ability to carry out very short and simple instructions, sustain an
ordinary routine without special supervision, or to make simple work-related decisions. [Tr. 198].
However, Dr. Sweeney assessed that Plaintiff was moderately limited in the ability to carry out
detailed instructions; maintain attention and concentration for extended periods; perform activities
within a schedule, maintain regular attendance, and be punctual within customary tolerances; work
in coordination with or in proximity to others without being distracted by them; and to complete a
normal workweek without interruptions. [Id.].
When assessing Plaintiff’s social interaction limitations, Dr. Sweeney opined that Plaintiff
was not significantly limited in the ability to ask simple questions or request assistance, maintain
socially appropriate behavior, or adhere to basic standards of neatness. [Tr. 199]. She found that

Plaintiff was moderately limited in the ability to interact appropriately with the general public,
accept instructions and respond appropriately to criticism from supervisors, and to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes. [Id.]. Lastly, Dr.
Sweeney explained in narrative form that Plaintiff had the ability to maintain concentration,
persistence, and pace with appropriate breaks for the normal workweek under normal supervision
for the tasks described above, as well as that within the above-described restrictions, Plaintiff had
the ability to infrequently relate to supervisors, coworkers, and the general public. [Id.].
Therefore, the assessed RFC limitation of performing simple, routine, and repetitive tasks
does not conflict with the moderate limitations assessed in Dr. Sweeney’s opinion, as Dr. Sweeney
9
“did not place any concrete functional limitations on her abilities to maintain attention,
concentration, or pace when performing” this level of tasks. See Smith-Johnson, 579 F. App’x at
437 (“Here, the limitation to simple, routine, and repetitive tasks adequately conveys Smith–
Johnson’s moderately-limited ability ‘to maintain attention and concentration for extended

periods.’ ... Second, Dr. Kriauciunas’s conclusion that Smith-Johnson is moderately limited in her
ability ‘to respond to changes at work’ is reflected by the terms ‘routine’ and ‘repetitive.’”).
However, Dr. Sweeney included a more specific limitation with respect to the assessed
moderate limitations in social function—that Plaintiff had the ability to infrequently relate to
supervisors, coworkers, and the general public. [Tr. 199]. As detailed above, Dr. Sweeney also
found that Plaintiff was moderately limited in the ability to accept instructions and respond
appropriately to criticism from supervisors, as well as to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes. [Id.]. While the ALJ included a limitation of
no work with the public and infrequent workplace changes in the RFC determination, he did not
specifically include any limitations regarding Plaintiff’s ability to interact with supervisors or

coworkers.
Under the previous regulations, even if an ALJ assigned great weight to an opinion, the
ALJ was not required to incorporate every opined limitation into the RFC.2 See, e.g., Reeves v.
Comm’r of Soc. Sec., 618 F. App’x 267, 276 (6th Cir. 2015); Poe v. Comm’r of Soc. Sec., 342 F.
App’x 149, 157 (6th Cir. 2009); see Purtty v. Comm’r of Soc. Sec. Admin., No. 1:13-CV-1204,

2 The applicable regulations for the evaluation of medical opinions have been abrogated as
to claims filed on or after March 27, 2017. See 20 C.F.R. §§ 404.1520c; 416.920c (“We will not
defer or give any specific evidentiary weight, including controlling weight, to any medical
opinion(s) . . . including those from your medical sources.”); see also Revisions to Rules Regarding
the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819, at *5852–57 (Jan.
18, 2017). As Plaintiff’s application was filed after March 27, 2017, the revised regulations apply.
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2014 WL 3510991, at *9 (N.D. Ohio July 10, 2014) (“[A]n ALJ is not required to explain each
limitation or restriction he adopts or, conversely, does not adopt from a consultative examiner’s
opinion. While an ALJ must consider medical opinions, the RFC determination is expressly
reserved to the Commissioner.”) (internal citations omitted). Similarly, “[t]he Revised

Regulations provide no basis for abandoning this precedent.” Ephraim v. Saul, No. 1:20-CV-633,
2021 WL 327755, at *13 (N.D. Ohio Jan. 8, 2021) (“Thus, although the ALJ deemed Dr.
Todd’s opinion ’persuasive,’ and stated that he was rewording her recommended limitations, he
was not required to include every element of all of her proposed limitations in the RFC or explain
why he did not adopt all of the proposed limitations.”), report and recommendation adopted sub
nom., Ephraim v. Comm’r of Soc. Sec., 2021 WL 325721 (N.D. Ohio Feb. 1, 2021).
While the ALJ retains a “zone of choice,” he must explain why he did not include
limitations assessed in contradicting medical opinions. Schmiedebusch v. Comm’r of Soc. Sec.,
536 F. App’x. 637, 649 (6th Cir. 2013). 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 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)).
Here, the ALJ failed to specifically review Plaintiff’s ability to interact with her supervisors
and coworkers, despite acknowledging moderate limitations in social interaction and finding
persuasive the opinion of Dr. Sweeney, which included a limitation to infrequent relating with
supervisors and coworkers. See, e.g., Krystal C. v. Saul, No. 19 C 2696, 2020 WL 6134983, at *7
11
(N.D. Ill. Oct. 19, 2020) (“Despite giving great weight to the state agency psychologists’ opinions
and explicitly including Dr. Biscardi’s limitation to superficial interaction with co-workers and
supervisors in Krystal’s RFC, the ALJ did not include a limitation to avoid interaction with the
general public in the RFC. It is unclear why the ALJ declined to accept Dr. Tin’s restriction to

work tasks that do not require interaction with the general public.”); Robert W. v. Comm’r, Soc.
Sec. Admin., No. 1:18-CV-0998-JFK, 2019 WL 3934803, at *8 (N.D. Ga. Aug. 20, 2019) (“The
ALJ did not offer any reasons for implicitly rejecting the portions of the state agency psychological
consultants’ opinions concerning social interaction with coworkers.”); Ekkens v. Comm’r of Soc.
Sec., No. 1:19-CV-364, 2019 WL 1409352, at *10 (N.D. Ohio Mar. 28, 2019) (remanding where
ALJ found moderate limitation in interacting with others and afforded great weight to opinions of
treating providers but “failed to explain why he did not include an RFC limitation to
occasional interaction with supervisors, co-workers, and others”). The ALJ further failed to
include any specific limitation on Plaintiff’s ability to interact with coworkers or supervisors in
the RFC determination, despite including a prohibition on working with the public. Cf. Anderson

v. Comm’r of Soc. Sec., No. 3:19-CV-85-SKL, 2020 WL 3485342, at *8 (E.D. Tenn. Mar. 18,
2020) (“To accommodate Plaintiff’s moderate limitation in interacting with others, the ALJ
limited Plaintiff’s RFC to only occasional interaction with the public, coworkers, and supervisors.
Plaintiff cites no authority supporting the proposition that this is insufficient, and the Court could
find none.”); Haggard v. Berryhill, No. 3:17-CV-99-DCP, 2018 WL 6003862, at *8 (E.D. Tenn.
Nov. 15, 2018) (“[A] marked limitation is not synonymous with a specific functional restriction
or RFC. As such, the Court finds that Plaintiff has not demonstrated why an RFC of occasional
interaction with coworkers and the public, and direct, non-confrontational supervision, fails to
accommodate Plaintiff’s marked limitation in social interactions.”).
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The Commissioner claims that “even if the ALJ had erred in not entirely adopting Dr.
Sweeney’s opinion regarding interaction with others, remand would still not be required, as the
doctor’s assessed limitations do not support a finding of disability in this case.” [Doc. 22 at 15].
In support, the Commissioner notes that the VE testified that an individual with Plaintiff’s

vocational profile and RFC could perform a significant number of jobs, including as a document
preparer, an assembler, and a clerk. The Commissioner states that these positions “all involve no
more than superficial interactions with others, as their Dictionary of Occupational Titles (DOT)
entries are all coded with an 8 in the ‘People’ field and marked ‘not significant.’” [Id. at 16].
For example, in Quintanilla v. Berryhill, the Central District of California addressed a
similar argument where the DOT descriptions for jobs as an assembler, cleaner, packager, and
machine feeder “indicate that dealing with people is ‘not significant’ . . . talking is ‘not present’ .
. . and each of these jobs is unskilled, which indicates limited interaction with people.” No. CV
16-01043-DFM, 2017 WL 1433306, at *4 (C.D. Cal. Apr. 21, 2017). Therefore, the Central
District of California found that “to the extent the ALJ failed to limit Plaintiff to ‘superficial work

related interaction with coworkers and supervisors,’ it was inconsequential to the outcome of the
ALJ’s final disability determination.” Id. (noting “[n]othing else in the descriptions for the
identified jobs indicates that they involve more complex than superficial interaction with
coworkers and supervisors”).
This issue here, however, is not the quality or nature of interactions Plaintiff may have with
coworkers and supervisors, i.e., superficial, but rather the quantity of time involved with those
interactions. “The Social Security Administration defines ‘occasional’ as ‘occurring from very
little up to one-third of the time, and would generally total no more than about 2 hours of an 8-
hour workday.’” Windsor v. Berryhill, No. 1:15-CV-391-GMB, 2017 WL 1147465, at *4 (M.D.
13
Ala. Mar. 27, 2017) (citing Soc. Sec. Rul. 96-9p, 1996 WL 374185, at *3 (July 2, 1996)). “On the
other hand, the Administration defines ‘frequent’ as ‘occurring from one-third to two-thirds of the
time.’” Id. (citing Soc. Sec. Rul. 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983)). “The
Administration does not define ‘infrequent,’ but by implication infrequent must be less often than

frequent—that is, occurring less than one-third of the time—a definition that overlaps with the
definition of ‘occasional.’” Id.; see, e.g., Adam C. v. Saul, No. 19-CV-0023, 2019 WL 6130815,
at *3 n.3 (N.D. Ill. Nov. 19, 2019); O’Brien v. Colvin, No. 1:15-CV-536, 2016 WL 2755459, at
*5 (M.D.N.C. May 11, 2016), report and recommendation adopted by, 2016 WL 5660296
(M.D.N.C. Sept. 30, 2016). “As to ‘superficial,’ there is no such definition within Social Security
Ruling 83-10.” Greene v. Saul, No. 3:19-CV-00687-JD, 2020 WL 4593331, at *4 (N.D. Ind. Aug.
11, 2020).
However, “occasional and superficial are not coterminous.” Danielson v. Comm’r of Soc.
Sec., No. 3:18-CV-84, 2019 WL 1760071, at *4 (S.D. Ohio Apr. 22, 2019), report and
recommendation adopted by, 2019 WL 2011077 (S.D. Ohio May 7, 2019). “Instead, [o]ccasional

contact goes to the quantity of time spent with [ ] individuals, whereas superficial contact goes to
the quality of the interactions.” Id. (internal quotation marks omitted) (quoting Hurley v. Berryhill,
No. 1:17-CV-421-TLS, 2018 WL 4214523, at *4 (N.D. Ind. Sept. 5, 2018)). “Courts have found
error where . . . an ALJ fails to address a medical source’s opinion regarding both the nature and
frequency of an individual’s ability to interact with others in the workplace.” Scott v. Comm’r of
Soc. Sec., No. 3:18-CV-171, 2019 WL 2462282, at *3 (S.D. Ohio June 13, 2019) (collecting
cases), report and recommendation adopted by, No. 3:18-CV-171, 2019 WL 4220925 (S.D. Ohio
Sept. 5, 2019). Therefore, as a distinction exists between infrequent interactions with coworkers
and supervisors and a superficial degree regarding the extent of such interactions, the Court cannot
14
find that any such error by the ALJ to include such a limitation was harmless. Accordingly,
Plaintiff’s case will be remanded for the ALJ to appropriately consider Plaintiff’s ability to interact
with her coworkers and supervisors in the RFC determination.
B. Migraine Log

Plaintiff contends that the ALJ failed to properly consider the evidence regarding her
migraines, including a submitted migraine log. Additionally, Plaintiff states that “the evidence
from [her] neurologist provides support and is consistent with her migraine headache log.” [Doc.
20 at 11]. Plaintiff asserts that despite her treatment records, migraine log, and testimony regarding
the frequency of her migraine headaches, the ALJ “fail[ed] to consider her headache log,” as well
as “the medical evidence and treatment notes documenting the severity of her migraine
headaches.” [Id. at 14]. Lastly, Plaintiff claims that this error was harmful as the ALJ subsequently
failed to include any limitations in the RFC to account for absences or time-off task that she would
experience due to her migraine headaches or treatment for these headaches.
The Commissioner responds that Plaintiff’s arguments regarding the ALJ’s decision not to

include additional limitations in the RFC related to her migraine headaches “amounts to Plaintiff
merely disagreeing with the ALJ’s findings.” [Doc. 22 at 22]. The Commissioner notes that the
ALJ specifically considered Plaintiff’s migraines and discussed her course of treatment. Lastly,
Commissioner asserts that the ALJ was not required to specifically discuss each piece of evidence
in the medical record. Plaintiff replies that the medical record regarding her treatment for chronic
migraines is “substantially inconsistent with the ALJ’s findings” and the ALJ thus “failed to
account for [Plaintiff’s] allegations that are consistent with and strongly supported by the evidence
of record.” [Doc. 23 at 2].
In the disability decision, the ALJ first noted Plaintiff’s testimony that she has chronic
15
migraines, as well as Feb 25, 2016 treatment notes from Erlanger UT Neurology for evaluation of
Plaintiff’s headaches. [Tr. 17]; see [Tr. 893]. The ALJ reviewed Plaintiff’s neurologic
examination, as well as that Plaintiff stated that she would like to start a trial of Topamax. [Tr.
17]; see [Tr. 987]. The ALJ then discussed that Plaintiff returned in September of 2016 for a

follow-up appointment and “reported that her milder headaches had improved but she was still
having more severe headaches each week,” that she felt that her new position at work and increased
stress had caused an increased frequency in headaches, and that “a MRI of her brain was given,
which showed scattered foci of white matter signal abnormality and developmental venous
abnormality in the right paramedian frontal lobe.” [Tr. 17]; see [Tr. 899].
Next, the ALJ discussed that Plaintiff reported in February of 2017 “that her alleged
headaches were improved, her Bipolar was stable and she was having no mood swings.” [Tr. 18];
see [Tr. 671]. The ALJ stated that Plaintiff reported in October of 2017 that her alleged headaches
had returned. [Tr. 18]; see [Tr. 683]. The ALJ detailed that Plaintiff reported in September of
2017 that she was still having migraine headaches, and that during a follow-up visit in October of

2017, “a recent EEG was normal and a recent MRI of her brain showed no acute abnormality
(unchanged from prior exam).” [Tr. 19]; see [Tr. 906, 917].3 Additionally, the ALJ stated that
Plaintiff “was provided with medication management treatment and it was also noted that her
alleged episodes were not found to be seizures.” [Tr. 19]; see [Tr. 918].
The ALJ then reviewed Plaintiff’s follow-up visit regarding her headaches at UT Erlanger
Neurology in April of 2018. [Tr. 20]; see [Tr. 1110]. The ALJ detailed that in May of 2018,

3 The October 30, 2017 treatment note states that an MRI of Plaintiff’s brain “shows no
acute abnormality, right frontal developmental venous anomaly, unchanged from prior exam.”
[Tr. 1107].

16
Plaintiff was treated with Botox injections for her “alleged headaches,” physical therapy treatments
were recommended, and “physical therapy notes show that the claimant attended four sessions
from April to July of 2018 and the claimant reported that the PT treatment was helpful.” [Tr. 20];
see [Tr. 1115–16].

Plaintiff points to additional treatment notes documenting her reports of migraines since
she was eighteen that were worsening with age, MRI testing revealing a developmental venous
abnormality in the right paramedian frontal lobe, and reports of increased frequency and severity
of headaches in October of 2017. [Tr. 1106–07]. Plaintiff notes that “[a]ll of these issues were
reported despite a prior increase in her Topamax for migraine prevention and [F]ioricet to take
when she had a severe headache.” [Doc. 20 at 12]. Additionally, Plaintiff claims that treatment
notes following her Botox injection and physical therapy detail that she reported a mild
improvement with physical therapy but continued severe, migraine headaches on May 30, 2018.
See [Tr. 1369].4
Plaintiff also bases her argument on the ALJ’s statement during the disability hearing that

he wanted to address the submitted migraine log “on the record, so we’ll know to expect it.” See
[Doc. 20 at 10]. However, a review of the transcript of the hearing demonstrates that the ALJ
stated that Plaintiff’s counsel had informed the ALJ “prior to the hearing” that he brought “a
migraine log,” consisting of a “calendar showing when and describing some of the migraines.”
[Tr. 155–56]. The ALJ mentioned the migraine log during the hearing in order to ensure that its
production was documented on the record. The Court does not find that this statement creates any
obligation on behalf of the ALJ to specifically discuss the submitted evidence. See Boseley v.

4 Plaintiff incorrectly states that this treatment note was from “June 2018.” [Doc. 20 at 12].
17
Comm’r of Soc. Sec., 397 F. App’x 195, 199 (6th Cir. 2010) (“Neither the ALJ nor the [Appeals]
Council is required to discuss each piece of data in its opinion, so long as they consider the
evidence as a whole and reach a reasoned conclusion.”); Kornecky v. Comm’r of Soc. Sec., 176 F.
App’x 496, 507–08 (6th Cir. 2006). However, while the ALJ reviewed the medical record

regarding Plaintiff’s chronic migraines, he failed to make any findings or specifically consider the
impact of her headaches in the RFC determination. Accordingly, on remand, the ALJ is
specifically directed to review the effect that Plaintiff’s migraine headaches have on her ability to
perform work-related activities. See, e.g., Montoya v. Saul, No. CV 19-271 JAP/LF, 2020 WL
6526142, at *5 (D.N.M. Nov. 5, 2020) (finding the ALJ failed to consider the limiting effects of
the claimant’s migraines when formulating her RFC, despite acknowledging that she did not have
a severe migraine impairment, as “without the correct application of law and analysis, this Court
cannot confidently say that Ms. Montoya’s RFC should not include limitations from her migraine
headache impairment”); Burton v. Comm’r of Soc. Sec., No. 18-13103, 2020 WL 57612, at *2
(E.D. Mich. Jan. 6, 2020) (finding the ALJ failed to appropriately consider the claimant’s migraine

headaches when the ALJ failed to address whether the claimant’s headaches were severe or non-
severe, or whether they caused limiting effects); cf. Falin v. Saul, No. 2:18-CV-202, 2020 WL
1151308, at *4 (E.D. Tenn. Mar. 9, 2020) (finding the ALJ did not commit reversible error even
if he erred by failing to find the claimant’s migraines as a severe impairment, as he found some
impairments to be severe and considered the limiting effects of the claimant’s migraines in the
RFC determination).
C. Treating Sources’ Opinions
Plaintiff asserts that the ALJ erred in his assessment of the opinions of her treating
providers, as “[t]he ALJ did not apply or refer [to] the new factors for considering and articulating
18
weight assigned to medical opinion[s] for claims filed after March 27, 2017.” [Doc. 20 at 15].
Plaintiff claims that despite the alleged significant support in the medical record for the opinions
of her treating nurse practitioner Madeline Grotefendt, FNP, and masters level mental health
therapist, JoAnn Poschke5, M.A., the ALJ improperly found Ms. Poshcke’s opinion to be

unpersuasive and MS. Grotefendt’s opinion to be only partially persuasive. The Government
responds that the ALJ appropriately considered the medical opinions of record under the applicable
regulations.
Plaintiff was treated for her bipolar disorder, anxiety, and panic disorder and began seeing
Ms. Poschke on June 6, 2017. [Tr. 733]. Plaintiff attended three therapy sessions with Ms.
Poschke in June of 2017. [Tr. 721–729], and continued therapy and medication management
appoints through July of 2018. [Tr. 699–720, 1140–1203, 1206–31]. Ms. Poschke then completed
a mental residual functional capacity assessment on July 27, 2018. [Tr. 976–79]. Ms. Poschke
noted that Plaintiff began bi-weekly mental health treatment on August 25, 2015 and assessed that
Plaintiff had moderate limitations in the ability to remember locations and work-like procedures

and understand and remember very short and simple instructions, while she was markedly limited
in the ability to understand and remember detailed instructions. [Tr. 976–77]. Additionally, Ms.
Poschke assessed that Plaintiff was moderately limited in the ability to carry out very short and
simple instructions, to perform activities within a schedule, maintain regular attendance, be
punctual within customary tolerances, sustain an ordinary routine without special supervision,
work in coordination with or proximity to others without being distracted by them, and make
simple work-related decisions; but that she was markedly limited in the ability to carry out detailed

5 The Court notes that both Plaintiff and the ALJ appeared to have misspelled Ms.
Poschke’s name throughout the briefing and disability decision.
19
instruction and maintain attention and concentration for extended periods. [Tr. 977–78]. Ms.
Poschke found that Plaintiff was not ratable in regard to the ability to complete a normal workday
and workweek without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. [Tr. 978].

When assessing Plaintiff’s social interaction, Ms. Poschke assessed that she was
moderately limited in the ability to interact appropriately with the general public, ask simple
questions or request assistance, accept instructions and respond appropriately to criticism from
supervisors, and get along with coworkers or peers without distracting them or exhibiting
behavioral extremes. [Id.]. However, Ms. Poschke found that Plaintiff was mild-to-moderately
limited in the ability to maintain socially appropriate behavior and adhere to basic standards of
neatness and cleanliness. [Id.]. Lastly, when reviewing adaption, Ms. Poschke found that Plaintiff
was moderately limited in the ability to respond appropriately to changes in the work setting, be
aware of normal hazards and take appropriate precautions, and travel in unfamiliar places or use
public transportation; but that she was markedly limited in the ability to set realistic goals or make

plans independently of others and to tolerate normal levels of stress. [Tr. 979].
Plaintiff’s primary care provider and treating nurse practitioner, Ms. Grotefendt, completed
a medical source statement on June 25, 2018. [Tr. 946–48]. Ms. Grotefendt opined that during an
eight-hour work day, Plaintiff could occasionally lift and carry up to twenty pounds, frequently lift
and carry up to ten pounds, could stand and walk for about two hours, and could sit for about four
hours during an eight-hour workday. [Tr. 946]. Additionally, Ms. Grotefendt assessed that
Plaintiff could sit for sixty minutes before changing positions, stand for thirty minutes before
changing positions, and must walk around for at least five minutes every hour. [Id.]. Ms.
Grotefendt stated that these findings were supported by Plaintiff’s chronic back pain, migraine
20
headaches, diffuse arthralgia, fatigue, and anemia. [Id.].
Next, Ms. Grotefendt found that Plaintiff could occasionally twist, stoop, crouch, and climb
stairs and ladders, and that she could not push or pull greater than ten pounds, both due to her
chronic back pain. [Tr. 947]. Ms. Grotefendt did not assess any environmental restrictions, stated

that Plaintiff would need to miss work one day each month due to her impairments, and noted that
she believed that Plaintiff could work on a regular and sustained basis in light of her impairments.
[Tr. 947–48].
Since Plaintiff’s claim was filed after March 27, 2017, the Social Security Administration’s
new regulations for evaluation of medical opinion evidence apply to this claim. See Revisions to
Rules Regarding the Evaluation of Medical Evidence (Revisions to Rules), 2017 WL 168819, 82
Fed. Reg. 5844 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. Under the new revised regulations, the
Commissioner “will not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) or prior administrative findings, including those from your
medical sources.” 20 C.F.R. § 404.1520c(a). The Commissioner will “evaluate the

persuasiveness” of all medical opinions and prior administrative medical findings using the
following factors: 1) supportability; 2) consistency; 3) the source’s relationship with the claimant,
including length of the treatment relationship, frequency of examinations, purpose of the treatment
relationship, extent of the treatment relationship, and examining relationship; 4) the source’s
specialized area of practice; and 5) other factors that would tend to support or contradict a medical
opinion, including but not limited to evidence showing a medical source has familiarity with the
other evidence in the claim or an understanding of the agency’s disability program’s policies and
evidentiary requirements. 20 C.F.R. §§ 404.1520(a), (c)(1)-(5). However, supportability and
consistency are the most important factors. 20 C.F.R. §§ 404.1520(c)(b)(2).
21
Lastly, the revised regulations have set forth new articulation requirements for the ALJs in
their consideration of medical opinions, stating:
(1) Source-level articulation. Because many claims have voluminous case records
containing many types of evidence from different sources, it is not administratively
feasible for us to articulate in each determination or decision how we considered
all of the factors for all of the medical opinions and prior administrative medical
findings in your case record. Instead, when a medical source provides multiple
medical opinion(s) or prior administrative medical finding(s), we will articulate
how we considered the medical opinions or prior administrative medical findings
from that medical source together in a single analysis using the factors listed in
paragraphs (c)(1) through (c)(5) of this section, as appropriate. We are not required
to articulate how we considered each medical opinion or prior administrative
medical finding from one medical source individually;

(2) Most important factors. The factors of supportability (paragraph (c)(1) of this
section) and consistency (paragraph (c)(2) of this section) are the most important
factors we consider when we determine how persuasive we find a medical source’s
medical opinions or prior administrative medical findings to be. Therefore, we will
explain how we considered the supportability and consistency factors for a medical
source’s medical opinions or prior administrative findings in your determination or
decision. We may, but are not required to, explain how we considered the factors
in paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we
articulate how we consider medical opinions and prior administrative medical
findings in your case record;

(3) Equally persuasive medical opinions or prior administrative medical
findings about the same issue. When we find that two or more medical opinions
or prior administrative medical findings about the same issue are both equally well-
supported (paragraph (c)(1) of this section) and consistent with the record
(paragraph (c)(2) of this section) but are not exactly the same, we will articulate
how we considered the other most persuasive factors in paragraphs (c)(3) through
(c)(5) of this section for those medical opinions or prior administrative medical
findings in your determination or decision.

20 C.F.R. § 404.1520c(b)(1)-(3) (emphasis added); see generally Ephraim v. Saul, No. 1:20-CV-
633, 2021 WL 327755, at *13 (N.D. Ohio Jan. 8, 2021), report and recommendation adopted sub
nom., Ephraim v. Comm’r of Soc. Sec., 2021 WL 325721 (N.D. Ohio Feb. 1, 2021); Gentry v.
Saul, No. 3:19-CV-778, 2020 WL 5100848, at *5–6 (M.D. Tenn. Aug. 10, 2020), report and
22
recommendation adopted sub nom., Gentry v. Soc. Sec. Admin., 2020 WL 5096952 (M.D. Tenn.
Aug. 28, 2020).
As Plaintiff’s case will be remanded, the Court will not review in great detail Plaintiff’s
arguments regarding the ALJ’s treatment of the medical opinions. However, the Court finds that

the ALJ properly considered these factors in evaluating whether Ms. Grotefendt and Ms. Poschke’s
opinions. First, the ALJ reviewed Ms. Grotefendt’s opinion and found it to be partially persuasive
“because her opinion is not entirely consistent with the medical evidence of record in this case.”
[Tr. 22]. The ALJ then detailed that while Ms. Grotefendt provided limitations based on Plaintiff’s
reported chronic back pain, “treatment notes found throughout the record show overall normal
functioning related to her back, the record contains no imaging of her spine and the record also
shows that the claimant has not presented on a consistent basis for treatment of alleged back pain.”
[Id.].
Here, the ALJ detailed how the opinion was inconsistent with the medical record detailed
throughout the disability decision. See 20 C.F.R. § 404.1520c(c)(2) (“The more consistent a

medical opinion(s) ... is with the evidence from other medical sources and nonmedical sources in
the claim, the more persuasive the medical opinion(s) ... will be.”). Contrary to Plaintiff’s
arguments, the ALJ detailed how the medical record did not support the chronic back pain listed
by Ms. Grotefendt as a supporting basis for her opinion.
The ALJ reviewed Ms. Poschke’s opinion and found that the moderate to marked
limitations in Plaintiff’s ability to understand and remember, sustain concentration and persist,
socially interact and adapt “unpersuasive, as the record does not support the finding of marked
limitation in any mental health related functional area.” [Tr. 22]. The ALJ noted that “mental
status exams found throughout the treatment records show the claimant to be largely unremarkable
23
and her more recent records show that the claimant is reported to be doing well.” [Id.]. Lastly,
the ALJ found Ms. Poschke’s opinion “internally inconsistent as she notes the claimant to have
marked limitation in several functional areas; however, at the end of her form, she states that the
claimant’s ability to work depends on what type of job she has.” [Id.]. Again, contrary to

Plaintiff’s argument, the ALJ reviewed the consistency and supportability of Ms. Poschke’s
opinion. While the ALJ acknowledged her treating relationship with Plaintiff, under the revised
regulations, the ALJ is not required to explicitly state how they considered each factor. 20 C.F.R.
§ 404.1520c(b)(1).
Ultimately, although Plaintiff cites to treatment records, which she claims are consistent
with Ms. Poschke’s opinion, and would interpret the medical record differently, the Court finds
that the ALJ’s determination was within his “zone of choice.” Blakley v. Comm’r of Soc. Sec., 581
F.3d 399, 407 (6th Cir. 2009); see also Huizar v. Astrue, No. 3:07CV411-J, 2008 WL 4499995, at
*3 (W.D. Ky. Sept. 29, 2008) (“While plaintiff understandably argues for a different interpretation
of the evidence from that chosen by the ALJ, the issue is not whether substantial evidence could

support a contrary finding, but simply whether substantial evidence supports the ALJ’s findings.”).
D. Evidence Regarding the Severity of Plaintiff’s Bladder and Urinary
Impairments

Plaintiff claims that the ALJ improperly found her bladder and urinary issues to be a
nonsevere impairment, as his analysis mischaracterized the record related to her urinary problems.
Plaintiff submits that the medical record “contains extensive records documenting [her] complaints
and difficulties with urinary frequency and incontinence.” [Doc. 20 at 20]. Additionally, Plaintiff
notes that the medical records cited by the ALJ in support of his Step Two finding are unrelated
mental health treatment notes. The Commissioner responds that “the ALJ accurately and fairly
24
characterized Plaintiff’s comments to Ms. Poschke in August 2018 that she was currently enjoying
working a retail job, without any mention of urinary difficulties,” as well as that the ALJ properly
evaluated Plaintiff’s subjective complaints. [Doc. 22 at 22].
During Step Two of the disability decision, the ALJ discussed Plaintiff’s urinary issues by

stating:
The claimant testified that she has to go to the restroom every 15 minutes. The
medical record shows that in March of 2017, [a] urodynamics procedure was
performed, the results of which showed no evidence of detrusor instability and
intrinsic sphincter deficiency [Tr. 522]. The medical record also shows that the
claimant has presented on occasion in 2018 for treatment and reported to having
increased urinary frequency [Tr. 1111 & 1252]. However, her most recent records
[from] July and August of 2018 show that the claimant was working retail and
enjoying it[,] making no mention of urinary frequency issues [Tr. 1139 & 1142].
Therefore, after my review of the entire record, I have found the claimant’s urinary
frequency to be a current non-severe impairment.

[Tr. 14].
At Step Two, the ALJ is required to consider whether Plaintiff’s alleged impairments
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. Additionally, 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
25
Feb. 10, 2017) (internal citations omitted).
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).
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
characterized any other alleged impairment as severe or not severe is of little consequence.”).
Ultimately, the Court finds that the ALJ’s Step Two decision that Plaintiff’s urinary
frequency was not a severe impairment is not supported by substantial evidence, and Plaintiff
satisfied her de minimis hurdle at this stage of the disability determination. See, e.g., Higgs, 880
F.2d at 862 (“Under [this] prevailing de minimis view, an impairment can be considered not severe
26
only if it is a slight abnormality that minimally affects work ability regardless of age, education,
and experience.”).
Plaintiff “bears the burden of demonstrating that [s]he suffers from a medically
determinable physical impairment[,]” as well as “the burden of showing a severe impairment by

medical evidence.” Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 559 (6th Cir. 2014). Here,
Plaintiff points to a July 30, 2018 treatment note wherein Plaintiff reported that she had increased
urinary frequency and recurrent urinary tract infections. [Tr. 1313]. A urinalysis was subsequently
ordered, although it does not appear the results are present in the medical record. [Tr. 1316].
Plaintiff also notes a complaint of an overactive bladder in October 2017 [Tr. 932] and similar
complaints of urinary frequency on June 18, 2018 [Tr. 1324]. 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.” Soc. Sec. Rul. 85-28, 1985 WL
56856, at *3 (Jan. 1, 1985). Therefore, the Court finds that Plaintiff has cited to evidence in the
medical record regarding her urinary frequency to overcome her de minimis hurdle at Step Two of

the disability determination.
Moreover, the ALJ’s citation to Plaintiff’s “most recent records” regarding her retail job
are based on her mental health records from Helen Ross McNabb on July 27, 2018 and August 13,
2018. [Tr. 14]; see [Tr. 1139 & 1142]. After reviewing the medical record regarding Plaintiff’s
urinary problems, the sole analysis in support of his finding that her urinary frequency was a non-
severe impairment was the citation to the unrelated mental health records. Therefore, the Court
cannot find that the ALJ’s Step Two determination was supported by substantial evidence. “In
reviewing the ALJ’s severity finding, the Court’s job is not to decide whether it would find
differently, but whether substantial evidence supports the ALJ’s finding.” Guerrero v. Comm’r of
27
Soc. Sec., No. 2:19-cv-1426, 2019 WL 6798918, at *6 (S.D. Ohio Dec. 13, 2019). Plaintiff also
states that she was only able to work at the new retail job for a couple of weeks because of several
medical problems, including frequent urination, and that she testified about this issue during the
hearing. [Tr. 167–69].

Additionally, although the ALJ found Plaintiff’s urinary frequency to be a current non-
severe impairment, he failed to further address this issue during the RFC determination. “If the
ALJ discusses an impairment in the step two severity analysis, and finds the impairment to be
nonsevere, he or she must still consider the impact of any non-severe limitations in the RFC
analysis.” Hines v. Berryhill, No. 6:17-CV-160-HAI, 2018 WL 2164873, at *4 (E.D. Ky. May 10,
2018). The ALJ’s only analysis of the relevant medical evidence discussed above is during Step
Two of the disability determination. See, e.g., Winn v. Comm’r of Soc. Sec., 615 F. App’x 315,
326 (6th Cir. 2015) (“[T]he ALJ’s step-four determination regarding Winn’s RFC did not consider
Winn’s mental impairments in a meaningful way.”); Six v. Comm’r of Soc. Sec., No. 2:18-CV-
01639, 2020 WL 746595, at *7 (S.D. Ohio Feb. 14, 2020) (“Failure to state the basis for including

no limitations arising from non-severe impairments is error.”); Katona v. Comm’r of Soc. Sec., No.
14–CV–10417, 2015 WL 871617, at *6 (E.D. Mich. Feb. 27, 2015) (“And to the extent an ALJ
determines that an identified impairment, severe or non-severe, does not result in any work-related
restrictions or limitations, the ALJ ‘is required to state the basis for such conclusion.’”)
(quoting Hicks v. Comm’r of Soc. Sec., No. 12–13581, 2013 WL 3778947, at *3 (E.D. Mich. July
18, 2013)) (other citations omitted); see also SSR 96-8p, 1996 WL 374184, at *5 (“In assessing
RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe.’”).

28
Accordingly, on remand, the ALJ is directed to reconsider whether Plaintiff’s urinary
frequency constitutes a severe impairment and assess any limitations stemming from this
impairment in the RFC determination.
E. Plaintiff’s Right Foot Impairment and Newly Submitted Evidence

Plaintiff claims that the ALJ erred by failing to properly evaluate her orthopedic
impairments, specifically her right foot impairment, as well as that newly submitted evidence
submitted to the Appeals Council is contrary to the ALJ’s finding that this impairment would not
meet the durational requirement. Plaintiff submits that the ALJ only discussed evidence regarding
her left toe fracture, as well as that “the new evidence submitted to the Appeals Council shows that
she continued to have significant difficulties with her right foot injury and was using a knee walker
for ambulation through at least January 2019.” [Doc. 20 at 23]. Plaintiff notes that at the hearing,
she was wearing a walking boot and specifically discussed issues with her right foot not healing
properly after surgery on her right great toe in December 2017, but that the ALJ only addressed
the evidence regarding her left toe fracture. [Id. at 22–23].

The Commissioner responds that the ALJ did in fact discuss Plaintiff’s medical records
regarding her right ankle and great toe, as well as “image testing of the right foot from September
2018 that showed findings consistent with a bone injury or stress injury.” [Doc. 22 at 21].
Additionally, the Commissioner claims that remand is not required for additional consideration of
the evidence Plaintiff submitted to the Appeals Council because it is not material. Plaintiff replies
that this newly submitted evidence supports further physical limitations and would impact “the
severity of this impairment and the durational requirement.” [Doc. 23 at 5].
In the disability decision, the ALJ reviewed imaging of Plaintiff’s left foot and found “that
this impairment does not meet the durational requirement for a severe impairment.” [Tr. 14].
29
While the ALJ failed to specifically address medical records related to Plaintiff’s right foot, he
noted that Plaintiff “had surgery on her right great toe” in July of 2016, and generally reviewed
the medical records and related treatment, including that an examination in September of 2016
“showed her to be in no acute distress with 2/4 pulses, normal capillary refill test and an

examination of her right toe showed no erythema, drainage, dehiscence, local pain, clinical signs
of infection, or pain with palpation and the wound base was dry with minimal swelling.” [Tr. 17].
The ALJ further noted a medical visit in June 2017 when Plaintiff “reported to having continued
pain in her right foot and after evaluation, surgery was recommended . . . [and] apparently had
surgery on her right big toe in December 2017.” [Tr. 18]. The ALJ also reviewed imaging of
Plaintiff’s right foot in September of 2018. [Tr. 21].
Ultimately, as discussed above, any failure by the ALJ to specifically consider Plaintiff’s
right foot impairment would be harmless because of his subsequent consideration of its effect in
the RFC determination. As the Court has already found that Plaintiff’s case will be remanded,
however, the ALJ is advised, but not directed, to specifically consider the newly submitted

evidence regarding Plaintiff’s right foot injury and use of a knee walker through at least January
2019. Further, the ALJ is advised to review whether Plaintiff’s right and left foot impairments
constitute a severe impairment, and if necessary, reconsider their impact in the RFC determination.
VI. CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Summary Judgment [Doc. 19] will be
GRANTED IN PART, and the Commissioner’s Motion for Summary Judgment [Doc. 21] will
be DENIED. This case will be REMANDED to the SSA for the ALJ to appropriately consider
Plaintiff’s ability to interact with her coworkers and supervisors in the RFC determination, review
the effect that Plaintiff’s migraine headaches may have on her ability to perform work-related
30
activities, and review Plaintiff’s severe and nonsevere impairments (including Plaintiffs urinary
frequency and orthopedic impairments).
ORDER ACCORDINGLY.
; 2 )
( { th A OW Agate GALA
Debra C. Poplin Kos
United States Magistrate Judge

31

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10434271. Public record. Not legal advice.