Opinion

McCoy v. Commissioner of Social Security

Court
District Court, E.D. Tennessee
Filed
Apr 15, 2022
Cited by
0 cases
Authority
More cited than 29.6%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

ERICKA LATRICE MCCOY, )

)

Plaintiff, )

)

v. ) No. 1:21-cv-090-SKL

)

COMMISSIONER OF SOCIAL SECURITY, )

)

Defendant. )

MEMORANDUM AND ORDER

Plaintiff Ericka McCoy (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g)

and 1383(c) seeking judicial review of the final decision of the Commissioner of Social Security

(“Commissioner” or “Defendant”) denying her disability insurance benefits (“DIB”) and

supplemental security income (“SSI”). Each party has moved for judgment [Doc. 20 & Doc. 26]

and filed supporting briefs [Doc. 21 & Doc. 27]. For the reasons stated below: (1) Plaintiff’s

motion for summary judgment [Doc. 20] will be DENIED; (2) the Commissioner’s motion for

summary judgment [Doc. 26] will be GRANTED; and (3) the decision of the Commissioner will

be AFFIRMED.

I. ADMINISTRATIVE PROCEEDINGS

According to the administrative record [Doc. 11 (“Tr.”)], Plaintiff filed her applications for

DIB and SSI on December 18, 2017, alleging disability beginning May 27, 2016. Plaintiff’s claims

were denied initially and on reconsideration at the agency level. Plaintiff requested a hearing

before an administrative law judge (“ALJ”). The first hearing was held August 28, 2019, in

Chattanooga, Tennessee, but that hearing was continued so Plaintiff could obtain representation.

The second hearing was held January 22, 2020, in Chattanooga, Tennessee. Plaintiff was

represented by counsel at the second hearing. On April 13, 2020, the ALJ found Plaintiff was not

under a disability as defined in the Social Security Act at any time from the alleged onset date

through the date of the ALJ’s decision.

The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the

final decision of the Commissioner. Plaintiff timely filed the instant action.

II. FACTUAL BACKGROUND

A. Education and Employment Background

Plaintiff was born January 22, 1974, making her 42 years old on the alleged onset date,

which is considered a “younger person.” 20 C.F.R. §§ 404.1563(c); 416.963(c). She has a limited

education1 and is able to communicate in English. The ALJ noted Plaintiff has worked in the past

as a caregiver, a janitor, and a housekeeping cleaner. However, the ALJ noted it was “unclear

whether these jobs were substantial gainful activity, were performed long enough for the claimant

to achieve average performance, and were performed within the relevant period as required by

SSR 82-62.” (Tr. 23-24).

B. Medical Records

In her December 2017 Disability Report, Plaintiff alleged disability due to depression (Tr.

262). While there is no need to summarize all of the medical records herein, the relevant records

have been reviewed.

C. Hearing Testimony

At the hearing before the ALJ on January 22, 2020, Plaintiff and a vocational expert (“VE”)

1 Plaintiff’s brief states that she has completed two years of college [Doc. 21 at Page ID # 1141].

This appears to be an error. Plaintiff testified at the January 2020 hearing that she has only a tenth

grade education (Tr. 39).

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testified. As noted, Plaintiff was represented by counsel at the hearing. The Court has carefully

reviewed the transcript of the hearing (Tr. 32-48).

III. ELIGIBILITY AND THE ALJ’S FINDINGS

A. Eligibility

“The Social Security Act defines a disability as the ‘inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which can

be expected to result in death or which has lasted or can be expected to last for a continuous period

of not less than 12 months.’” Schmiedebusch v. Comm’r of Soc. Sec., 536 F. App’x 637, 646 (6th

Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)); see also Parks v. Soc. Sec. Admin., 413 F. App’x

856, 862 (6th Cir. 2011) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant is disabled “only 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.” Parks, 413 F. App’x

at 862 (quoting 42 U.S.C. § 423(d)(2)(A)). The Social Security Administration (“SSA”)

determines eligibility for disability benefits by following a five-step process. 20 C.F.R. §

404.1520(a)(4)(i-v). The five-step process provides:

1) If the claimant is doing substantial gainful activity, the claimant is

not disabled.

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

physical or mental impairment—i.e., an impairment that

significantly limits his or her physical or mental ability to do basic

work activities—the claimant is not disabled.

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

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

meets the duration requirement, the claimant is disabled.

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

his or her past relevant work, the claimant is not disabled.

5) If the claimant can make an adjustment to other work, the claimant

is not disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citations omitted). The

claimant bears the burden to show the extent of his impairments, but at step five, the Commissioner

bears the burden to show that, notwithstanding those impairments, there are jobs the claimant is

capable of performing. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010)

(citations omitted).

B. The ALJ’s Findings

The ALJ found Plaintiff meets the insured status requirements of the Social Security Act

through September 30, 2023. At step one of the five-step process, the ALJ found Plaintiff had not

engaged in substantial gainful activity since her alleged onset of disability date, May 27, 2016.

At step two, the ALJ found Plaintiff had the following severe impairments: (1) residuals of

a lower extremity joint dysfunction, (2) obesity, and (3) degenerative disc disease of the lumbar

spine. The ALJ also noted Plaintiff had been diagnosed with depression, but he found this

condition did not cause more than a minimal limitation in the claimant’s ability to perform basic

mental work activities and was therefore nonsevere (Tr. 18). The ALJ further found additional

nonsevere impairments of hypertension, hyperlipidemia, and diabetes (Tr. 18).

At step three, the ALJ found Plaintiff did not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed impairments in 20

C.F.R. Part 404, Subpart P, Appendix 1. Next, the ALJ found Plaintiff had the residual functional

capacity (“RFC”) to perform “a reduce[d] range of light exertion in which she stands/walks not

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more than 4 hours per eight-hour day, to include the full range of sedentary exertion as defined in

20 C.F.R. 404.1567(a) and 416.967(a),” with the following additional restrictions:

 She cannot climb ladders, ropes, or scaffolds.

 She can only occasionally climb ramps and stairs.

 She can only occasionally balance, stoop, kneel, crouch, and crawl.

 Secondary only to the adverse side effects of prescribed

medications, she is limited to a non-hazardous work environment.

(Tr. 20).

At step four, as mentioned above, the ALJ found Plaintiff had previously worked as a

caregiver, janitor, and a housekeeping cleaner, but that it was unclear whether this work constituted

substantial gainful activity. The ALJ therefore declined to resolve the case at step four, even

though the housekeeping cleaner occupation did fall within the parameters of Plaintiff’s RFC (Tr.

24).

At step five, the ALJ found there were occupations available to a person with Plaintiff’s

RFC existing in substantial numbers in the national economy, including housekeeping/cleaner,

small parts assembler, and hand packager at the light physical exertional level; and tableworker,

assembler, and sealer at the sedentary physical exertional level (Tr. 24-25).

These findings led to the ALJ’s determination that Plaintiff was not under a disability as

defined in the Social Security Act at any time between the alleged onset date of May 27, 2016, and

the date of the decision, April 13, 2020 (Tr. 25).

IV. ANALYSIS

Plaintiff argues the ALJ’s decision should be reversed and remanded for further

administrative proceedings. She lists the following issues:

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1. The ALJ’s Step 2 determination is unsupported by

substantial evidence where he failed to properly evaluate

Plaintiff’s depression.

2. The ALJ’s RFC determination is not supported by

substantial evidence because he failed to properly evaluate

Dr. Goewey’s opinion.

[Doc. 21 at Page ID # 1140].

A. Standard of Review

A court must affirm the Commissioner’s decision unless it rests on an incorrect legal

standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm’r

of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citations omitted). The United States Supreme

Court recently explained that “‘substantial evidence’ is a ‘term of art,’” and “whatever the meaning

of ‘substantial’ in other settings, the threshold for such evidentiary sufficiency is not high.” Biestek

v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted). Rather, substantial evidence

“means—and means only—‘such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Id. (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see

also McClanahan, 474 F.3d at 833. Furthermore, the evidence must be “substantial” in light of

the record as a whole, “taking into account whatever in the record fairly detracts from its weight.”

Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (citations omitted).

If there is substantial evidence to support the Commissioner’s findings, they should be

affirmed, even if the court might have decided facts differently, or if substantial evidence would

also have supported other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996) (citations

omitted); Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971) (citation omitted). The court may

not re-weigh evidence, resolve conflicts in evidence, or decide questions of credibility. Garner,

745 F.2d at 387. The substantial evidence standard allows considerable latitude to administrative

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decision makers because it presupposes “there is a ‘zone of choice’ within which the

Commissioner can act, without the fear of court interference.” McClanahan, 474 F.3d at 833

(quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).

The court may consider any evidence in the record, regardless of whether it has been cited

by the ALJ. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may

not, however, consider any evidence which was not before the ALJ for purposes of substantial

evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is

under no obligation to scour the record for errors not identified by the claimant, Howington v.

Astrue, No. 2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that

assignments of error not made by claimant were waived), and arguments not raised and supported

in more than a perfunctory manner may be deemed waived, Woods v. Comm’r of Soc. Sec., No.

1:08-CV-651, 2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing McPherson v. Kelsey,

125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory claims of error without further

argument or authority may be considered waived).

B. The ALJ’s Assessment of Plaintiff’s Depression

Plaintiff argues the ALJ erred by finding her depression to be a nonsevere impairment and

further because the decision “provides no explanation for not incorporating any other mental

limitation into his RFC determination despite finding mild mental limitations in all domains of

function.” [Doc. 21 at Page ID # 1156-57].

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.

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§ 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, as Plaintiff acknowledges, “‘[t]he fact that some of [a

claimant’s] impairments were not deemed to be severe at step two is . . . legally irrelevant’ where

other impairments are found to be severe.” Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 852 (6th

Cir. 2020) (quoting Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008)). “An erroneous

finding of nonseverity at step two is therefore harmless where the ALJ properly considers

nonsevere impairments at later steps.” Id. (citing Maziarz v. Sec’y of Health & Human Servs., 837

F.2d 240, 244 (6th Cir. 1987); Gray v. Comm’r of Sec. Sec., 365 F. App’x 60, 61 (6th Cir. 2010)).

In this case, the ALJ found Plaintiff had severe impairments, namely residuals of a lower

extremity joint dysfunction, obesity, and degenerative disc disease of the lumbar spine (Tr. 18).

Accordingly, to the extent the ALJ erred in finding that Plaintiff’s depression was a nonsevere

impairment, such error is harmless as long as the ALJ properly considered Plaintiff’s depression

at later steps.

Social Security Ruling (“SSR”) 96-8p provides:

In assessing RFC, the adjudicator must consider limitations and

restrictions imposed by all of an individual's impairments, even

those that are not “severe.” While a “not severe” impairment(s)

standing alone may not significantly limit an individual’s ability to

do basic work activities, it may--when considered with limitations

or restrictions due to other impairments--be critical to the outcome

of a claim. For example, in combination with limitations imposed

by an individual’s other impairments, the limitations due to such a

“not severe” impairment may prevent an individual from performing

past relevant work or may narrow the range of other work that the

individual may still be able to do.

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SSR 96-8p, 1996 WL 374184, at *5 (SSA July 2, 1996); see also 20 C.F.R. §§ 404.1545(e),

416.945(e) (“We will consider all of your medically determinable impairments of which we are

aware, including your medically determinable impairments that are not ‘severe[.]’”).

The Sixth Circuit clarified the requirements of SSR 96-8p in Emard. In that case, the

plaintiff argued the ALJ failed to consider his nonsevere impairments in assessing RFC, and that

the ALJ failed to consider the effect of all his impairments in combination with one another. 953

F.3d at 851. In applying SSR 96-8p and the corresponding regulation, 20 C.F.R. § 416.945(e)

(“Total Limiting Effects”), the Sixth Circuit rejected the plaintiff’s arguments, stating:

Although the ALJ did not specifically discuss the combined

effect of Emard’s impairments or mention Emard’s nonsevere

impairments in assessing his residual functional capacity, she stated

that she had carefully considered the entire record and “all

symptoms” at this step in the process. This court in Gooch v.

Secretary of Health & Human Services, 833 F.2d 589 (6th Cir.

1987), concluded that an ALJ’s statement that he had conducted “a

thorough review of the medical evidence of record,” along with the

fact that the ALJ had considered the claimant’s impairments

individually, sufficed to show that the ALJ had considered the

impairments in combination. Id. at 591-92. It explained that “the

fact that each element of the record was discussed individually

hardly suggests that the totality of the record was not considered,”

and “[t]o require a more elaborate articulation of the ALJ’s thought

processes would not be reasonable.” Id. at 592. As in Gooch, the

ALJ’s statements that she had considered the entire record and all of

Emard’s symptoms suggest that she had considered Emard’s

impairments in combination.

Moreover, the ALJ specifically noted in her summary of the

applicable law that she was required to comply with SSR 96-8p’s

mandate to “consider all of the claimant’s impairments, including

impairments that are not severe.” District courts in this circuit have

held that an ALJ need not specifically discuss all nonsevere

impairments in the residual-functional-capacity assessment when

the ALJ makes clear that her decision is controlled by SSR 96-8p.

See, e.g., Morrison v. Comm’r of Soc. Sec., No. 1:14-CV-1059, 2016

WL 386152, at *4 (W.D. Mich. Feb. 2, 2016), aff’d, No. 16-1360,

2017 WL 4278378 (6th Cir. Jan. 30, 2017); Davis v. Comm’r of Soc.

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Sec., No. 1:14-CV-0413, 2015 WL 5542986, at *4 (W.D. Mich.

Sept. 18, 2015). These decisions have relied on this court’s decision

in White v. Commissioner of Social Security, 572 F.3d 272 (6th Cir.

2009), where an ALJ’s statement that she considered a Social

Security Ruling pertaining to credibility findings sufficed to show

that the ALJ complied with that ruling. Id. at 287. The ALJ’s

express reference to SSR 96-8p, along with her discussion of the

functional limitations imposed by Emard’s nonsevere

impairments at step two of her analysis, fully support our

conclusion that the ALJ complied with 20 C.F.R. § 416.945(e)

and SSR 96-8p.

Emard, 953 F.3d at 851-52 (emphasis added).

In this case, the ALJ specifically noted in his step two analysis that the RFC assessment

“reflects the degree of limitation I have found in the ‘paragraph B’ mental function analysis,” and

the ALJ begins his RFC assessment by noting that he “considered all symptoms” (Tr. 20 (emphasis

added)). At the end of his RFC assessment, the ALJ stated that his “review of the record reveals

no significant deficiency in the claimant’s ability to perform the work-related activities” required

by Plaintiff’s RFC (Tr. 23). The ALJ also explained that he limited Plaintiff to a non-hazardous

work environment, “secondary only to adverse side effects of prescribed medications.” (Tr. 23).

In discussing the applicable law, the ALJ acknowledged that he “must consider all of the

claimant’s impairments, including impairments that are not severe,” citing the applicable

regulations and Social Security Ruling (“SSR”) 96-8p (Tr. 17). At step two, the ALJ addressed

the functional limitations imposed by Plaintiff’s depression (see Tr. 18-19). Furthermore, contrary

to Plaintiff’s suggestion, the ALJ’s findings of mild limitations in each of the four areas of mental

functioning does not necessarily mean the ALJ was required to incorporate mental limitations into

Plaintiff’s RFC. See, e.g., Shamsud-Din v. Comm’r of Soc. Sec., No. 16-cv-11818, 2017 WL

3574694, at * (E.D. Mich. July 24, 2017) (citing cases holding “mild limitations do not require

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incorporation into an RFC assessment”), report and recommendation adopted, 2017 WL 3531438

(E.D. Mich. Aug. 17, 2017).

Accordingly, the Court’s inquiry turns to the more substantive question of whether

substantial evidence supports the ALJ’s determination not to include mental limitations in

Plaintiff’s RFC.

In support of his determination that Plaintiff’s depression was a nonsevere impairment, the

ALJ found:

The evidence establishes an additional ongoing diagnosis of

depression, with prescribed psychotropic medications. Outpatient

mental health records from the Helen Ross McNabb Center in April

2018 reflect that, despite a somewhat depressed mood, mental status

examination demonstrated logical thought processes, normal

behavior, and normal speech (Exhibit 13F/2). The subsequent

mental health record reflects no decline, with mental status

examination in August 2019 demonstrating a normal mood with

normal affect, normal behavior and normal thought content (Exhibit

17F/6).

Therefore, I find the claimant’s medically determinable

mental impairment of depression, considered singly and in

combination, does not cause more than a minimal limitation in the

claimant’s ability to perform basic mental work activities and is

therefore non-severe.

I have also considered the mental health opinions from State

agency mental health consultants. At initial review in January 2018,

consultants assessed the claimant’s mental health impairment of

depression as, non-severe (Exhibits 3A and 4A). Following

reconsideration review in June 2018, consultants determined the

claimant is restricted to simple tasks/instructions, with additional

limitations to infrequent interaction with the general-public

(Exhibits 5A and 6A). In review, however, the redetermination

mental health opinion is not persuasive, as the mental health record

fails to support such limitations in concentration and in social

interaction. Indeed, the claimant has stated she remains capable of

completing tasks, and has had no difficulty interacting with multiple

treating and examining sources (Exhibit 8E/6). The initial non-

severe opinion from State agency physicians is persuasive, as I find

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it is consistent with and supported by the mental health evidence in

the claimant’s case file.

(Tr. 18-19). When discussing the four general areas of mental functioning, the ALJ also relied on

Plaintiff’s April 2018 Adult Function Report (Tr. 299-306), as well as the Helen Ross McNabb

records.

Plaintiff emphasizes that she “was diagnosed with severe depression since at least July 18,

2016.” [Doc. 21 at Page ID # 1154]. She cites page 582 of the record, but the only information on

page 582 concerning Plaintiff’s mental state is a statement: “Little interest or pleasure in doing

things: 0: not at all.” (Tr. 582), which appears to indicate Plaintiff actually was not experiencing

this issue (see Tr. 785). Regardless, the record from the same day does not identify depression as

a “problem” (Tr. 583). The three problems listed are hypertension, nicotine dependence, and

elevated white blood cell count (Tr. 583).

Plaintiff goes on to identify a number of items in the record which she contends the ALJ

erred by not considering or discussing. Many of these, however, are records from the Helen Ross

McNabb Center, which the ALJ did reference as quoted above, and which were available to the

State agency psychological consultants who reviewed Plaintiff’s file and determined Plaintiff had,

at most, mild mental limitations (Tr. 60-61). The fact that the ALJ did not specifically discuss

each entry noted by Plaintiff in her brief is of no moment, because the ALJ is “not required to

explain every piece of evidence in the record.” Bayes v. Comm’r of Soc. Sec., 757 F. App’x 436,

445 (6th Cir. 2018). Further, “an ALJ’s failure to cite specific evidence does not indicate that it

was not considered.” Simons v. Barnhart, 114 App’x 727, 733 (6th Cir. 2004).

Plaintiff emphasizes that during a Comprehensive Pain Specialists (“CPS”) appointment

in July 2017, she was instructed to call a crisis helpline after she informed the nurse she was

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depressed and “has had thoughts of hurting herself by wrecking her car” (Tr. 665). She argues

that because the ALJ did not specifically discuss this record or others relating to Plaintiff’s

allegedly suicidal thoughts, that it is “impossible for the Court[] to determine whether the ALJ”

considered this evidence “or if he simply ignored this evidence altogether.” [Doc. 21 at Page ID #

1155]. However, the ALJ does, in fact, cite to the CPS records in his RFC assessment (Tr. 21).

Although he does not specifically discuss the CPS entries Plaintiff cites, the record nevertheless

reflects the ALJ did review the CPS records, and the ALJ specifically mentions a December 2017

CPS entry reflecting that Plaintiff reported she was able to work, attend social outings, cook, and

do her hobbies (Tr. 21, 635). The record reflects the State agency psychological consultant also

reviewed the CPS records when he offered his opinion that Plaintiff’s mental limitations were, at

most, mild, and that her depression was nonsevere (Tr. 60-61). The ALJ also cited the Dodson

Avenue Medicine medical records, which Plaintiff cites in her brief (Tr. 571, 22). It is therefore

clear the ALJ considered the relevant records.

Plaintiff argues that throughout her treatment, she “had completed multiple PHQ-2 and

PHQ-9 assessments that were all significant for depression.” [Doc. 21 at Page ID # 1154 (citing

Tr. 574, 785)]. Page 574 reflects that, in February 2017, Plaintiff told her providers that she felt

“down, depressed or hopeless,” and had “little interest or pleasure in doing things.” However, by

May 2019, the screening showed that Plaintiff had minimal or mild depression, and she indicated

she was not feeling down, depressed, irritable or hopeless at all (Tr. 785). This improvement is

also supported by Helen Ross McNabb records indicating that by April 2018, Plaintiff was not

experiencing suicidal or homicidal ideation, she had not engaged in self-injurious behaviors, and

her depression was better (Tr. 696). She had a score of “0” on a review for suicide risks (Tr. 696).

The ALJ specifically discussed the Helen Ross McNabb records from April 2018 at step two (Tr.

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18). The ALJ further discussed that Plaintiff maintained a normal mood and affect, with normal

thought content into August 2019. Records from Elite Pain Consultants describe Plaintiff’s

depression as “mild” in November 2019, with no thoughts of hurting herself or others (Tr. 991).

Finally, as early as November 2017, Plaintiff reported that she was not experiencing any visual or

auditory hallucinations (Tr. 613).

The only specific mental functional limitations Plaintiff advocates are (1) limitation to

simple tasks/instructions, and (2) infrequent interaction with the general public [Doc. 21 at Page

ID # 1156]. She argues the ALJ improperly rejected these limitations, which were opined to by

the State agency psychological consultant who reviewed Plaintiff’s file on reconsideration:

In support of this finding, the ALJ alleged Plaintiff herself

claimed to remain capable of completing tasks and that she had not

been observed to have difficulty interacting with multiple treating

and examining sources. T 19. The ALJ cites to one functioning

report that Plaintiff did not check the box next to completing tasks

as an area that was affected due to her mental impairments, but does

not reconcile this finding with the same evidence that Plaintiff had

indicated her conditions affect memory, concentration,

understanding, following instructions, and getting along with others

that would all impact her ability to perform work on a sustained

basis. T 304. Moreover, the ALJ points to an absence of evidence

indicating any difficulty to interact with her providers, all the while

ignoring ample evidence of Plaintiff’s reports of wanting to hurt

others, involving herself in altercations with her supervisors, and

being observed by these providers as having a flat or depressed

mood when receiving treatment. T 617, 620, 623, 625, 626, 665,

698, 708.

[Doc. 21 at Page ID # 1156].

Many of the pages Plaintiff cites as part of this argument are part of the Helen Ross

McNabb records and the CPS records, which are addressed above. As noted, the record reflects

the ALJ did consider these records and noted Plaintiff’s mental health did not decline over time

(Tr. 18).

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Plaintiff cites to no authority supporting the proposition that it was improper for the ALJ

to rely on Plaintiff’s own admissions in her Adult Function Report. While it is true Plaintiff

checked boxes on this form indicating her conditions affected her ability to concentrate,

understand, get along with others, remember, and follow instructions, the checked boxes do not

indicate any particular severity. Plaintiff indicated on the same Adult Function Form that she was

able to talk and play cards with people, that she has never been fired because of issues with other

people, and that she gets along “okay” with authority figures (Tr. 303-05). At that time, she was

living with her two sons and cooking for them (Tr. 299). She shops online for clothes, shoes, and

household cleaners, and manages her household finances (Tr. 302), which the ALJ noted

demonstrates her ability “to understand the need, remember the appropriate steps, and apply

information to complete such tasks.” (Tr. 19). Even if there are some internal inconsistencies in

the Adult Function Report, which the Court does not find, it was the ALJ’s job to weigh the

evidence.

In sum, the Court finds the ALJ adequately and accurately considered the evidence and

explained the basis for his decision not to include any functional limitations in Plaintiff’s mental

RFC. In other words, he addressed Plaintiff’s nonsevere impairments along with her severe

impairments, and found that Plaintiff’s mild mental limitations at step two did not affect her RFC.

See Hayman v. Berryhill, No. 3:16-cv-1998, 2017 WL 9476860, at *12 (N.D. Ohio Oct. 30, 2017)

(“[T]he ALJ did not find that the record demonstrated the need for specific work-based limitations

related to concentration, persistence, or pace. Therefore, the ALJ was under no obligation to

incorporate into either the RFC or the hypothetical question such limitations.”). Plaintiff cites to

some evidence that she contends supports her claim of disability, but an ALJ’s decision is “not

subject to reversal merely because there exists in the record substantial evidence to support a

different conclusion.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).

The record in this case demonstrates the ALJ incorporated into the RFC the functional limitations

he found to be credible and supported by the record. Accordingly, Plaintiff’s motion will be denied

to the extent she challenges the ALJ’s assessment of her depression and mental RFC in general.

C. The ALJ’s Consideration of Dr. Goewey’s Opinions

Plaintiff also challenges the ALJ’s assessment of her physical RFC, specifically, the ALJ’s

consideration of the opinions of the consultative examiner, Stephen K. Goewey, M.D. Regarding

Dr. Goewey’s opinions, the ALJ wrote:

In May 2018, and at the request of the Social Security

Administration, the claimant presented to Stephen K. Goewey,

M.D., a general medical consultative examiner, who assessed

decreased range of motion of the lumbar spine, cervical spine,

shoulders, hips and knees. During this examination, Dr. Goewey

statistically assessed the claimant at a height of 5’4” and with a body

weight of 245 pounds (Exhibit 15F/2). In accordance with Social

Security Ruling 19-2p, I have considered the effects of obesity in

assessing the claimant’s residual functioning capacity.

In assessing physical functioning, Dr. Goewey opined the

claimant can lift 20 pounds occasionally, sit between 3 to 4 hours

during an 8-hour workday and stand and/or walk at least 3 hours

during an 8-hour workday (Exhibit 15F/2-4). Longitudinal review

of the record reflects the claimant underwent an initial examination

with Dr. Goewey in May 2015, and after which he proffered

physical limitations commensurate with the current consultative

opinion (Exhibit 4F).

Although I have considered the proffered opinions from Dr.

Goewey, I find the claimant has a greater level of functional

restriction in standing/walking, and in lifting/carrying. Specifically,

and secondary to low back pain and bilateral knee pain, I find the

claimant is limited to standing/walking no more than two (2) hours

during an 8-hour workday. Given the claimant’s history of ACDF

and left shoulder arthroscopy, limitations to lifting/carrying no more

than 10 pounds on an occasional basis, is reasonable. With regard

to the proffered limitations in sitting, the record yields no evidence

of adverse clinical findings that would preclude the claimant from

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sitting 6 hours during an 8-hour workday. As such, the opinions

from Dr. Goewey are only partially persuasive.

(Tr. 22).

To assess a claimant’s RFC, ALJs are required to consider all of the relevant evidence in a

claimant’s record, including the medical opinion evidence. Rudd v. Comm’r of Soc. Sec., 531 F.

App’x 719, 728 (6th Cir. 2013). Plaintiff filed her applications on December 18, 2017.

Accordingly, as both parties acknowledge, the applicable regulations are 20 C.F.R. §§ 404.1520c

and 416.920c.2

Subsection (a) of 20 C.F.R.404.1520c provides:

(a) How we consider medical opinions and prior administrative

medical findings. We will not defer or give any specific evidentiary

weight, including controlling weight, to any medical opinion(s) or

prior administrative medical finding(s), including those from your

medical sources. When a medical source provides one or more

medical opinions or prior administrative medical findings, we will

consider those medical opinions or prior administrative medical

findings from that medical source together using the factors listed in

paragraphs (c)(1) through (c)(5) of this section, as appropriate. The

most important factors we consider when we evaluate the

persuasiveness of medical opinions and prior administrative medical

findings are supportability (paragraph (c)(1) of this section) and

consistency (paragraph (c)(2) of this section). We will articulate

how we considered the medical opinions and prior administrative

medical findings in your claim according to paragraph (b) of this

section.

The regulations explain that, regarding supportability, the “more relevant the objective

medical evidence and supporting explanations presented by a medical source are to support his or

2 For clarity’s sake, the Court also notes that applications filed prior to March 27, 2017, were

subject to the so-called “treating physician rule,” which requires ALJs to “generally give greater

deference to the opinions of treating physicians than to the opinions of non-treating physicians.”

Blakley v. Comm’r of Soc. Sec., 581 F. 3d 399, 406 (6th Cir. 2009). ALJs are no longer required

to give special deference to treating physicians, as is reflected in the regulation cited above.

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her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical

opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1).

Regarding consistency, the “more consistent a medical opinion(s) or prior administrative medical

finding(s) is with the evidence from other medical sources and nonmedical sources in the claim,

the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id.

§ 1520c(c)(2).

In addition to supportability and consistency, the ALJ is required to consider the source’s

relationship with the claimant, including the length, frequency, purpose, and extent of the treating

relationship, if any; the source’s specialization, and other factors, such as the source’s familiarity

with other evidence in the record and whether the source understands the SSA’s policies and

evidentiary requirements. Id. § 1520c(c). The ALJ is required to explain how they considered

supportability and consistency, but not the remaining factors. Id. § 1520c(b)(2).

If a source offers multiple opinions, the ALJ is not required to articulate their assessment

of every single medical opinion; rather, they can articulate how they considered all of that source’s

opinions “in a single analysis.” Id. § 1520c(b)(1).

Plaintiff contends the ALJ’s findings regarding Dr. Goewey’s opinions “were not

supported by substantial evidence because he failed to properly articulate how he considered the

opinions with specific reference to the supportability and consistency factors as required under the

regulations.” [Doc. 21 at Page ID # 1161]. Regarding the supportability factor, Plaintiff argues

the ALJ “failed to assess whether Dr. Goewey’s opinions were supported by his own examination

notes,” contending “Dr. Goewey’s opinion concerning Plaintiff’s limitation to sit for prolonged

periods is wholly supported by his objective observations during both examinations.” [Id. at Page

ID # 1159-60].

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Relevant to supportability, the ALJ observed that Dr. Goewey arrived at his opinion after

examining Plaintiff and assessing “decreased range of motion of the lumbar spine, cervical spine,

shoulders, hips and knees” as well as obesity (Tr. 22). The ALJ then specifically noted Dr.

Goewey’s exam findings concerning Plaintiff’s low back and knees and her associated pain

supported limitations in standing/walking (Tr. 22). Accordingly, when the ALJ rejected Dr.

Goewey’s opinion regarding sitting, the ALJ impliedly found these same findings (pain and

decreased range of motion in low back and knees) did not provide adequate support for the sitting

limitation Dr. Goewey assigned. Plaintiff does not contend this is error nor does she address why

the decreased range of motion Dr. Goewey observed supports robust sitting limitations.

Elsewhere in the decision, the ALJ discussed findings and notations in Plaintiff’s medical

record that undermine the supportability of Dr. Goewey’s opinion, and which reflect that the ALJ

performed the requisite consistency analysis. For example, the ALJ noted the following findings

from 2019 appointments at UT Erlanger Neurology and UT Erlanger Orthopedics:

In examination, . . . Don Hakes, PA-C [from UT Erlanger

Neurology] assessed no significant abnormalities, with full range of

motion of the cervical spine. During focused examination, Mr.

Hakes noted the claimant expressed “significant pain” in range of

motion of the hips; however, during distracted examination, the

claimant had good hip flexion, bilaterally, and expressed no pain

with internal or external rotation (Exhibit 30F/22). Mr. Hakes

assessed “excellent strength” of the bilateral lower extremities, with

x-rays of the left hip reflecting no more than “mild” sclerosis of the

acetabulum (Exhibit 30F/22). . . .

Despite subjective complaints of continuing lumbar pain, the

objective clinical record fails to support such complaints as alleged.

Treatment records from UT Erlanger Orthopedics show x-rays of

the lumbar spine reflected only “moderate” lumbar spondylosis at

L4-5 and L5-S1, with subsequent lumbar MRI studies in June 2019

yielding no evidence of spinal, canal, or neural foraminal stenosis

(Exhibits 21F/12 and 24F/14). Orthopedic records reflect a

diagnosis of trochanteric bursitis, with prescribed epidural

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injections. Post-injection examination of the left hip in July 2019

reflect[s] normal range of motion and normal strength (Exhibits

20F/3/8).

Although the claimant continued to report persistent lumbar

pain, the clinical record fails to support such complaints as alleged.

In August 2019, the claimant returned to UT Erlanger Neurology

wherein physical examination reflected normal gait, normal station,

intact sensation to light touch, and with muscle strength measured

at 5/5 throughout all extremities. Despite some decrease in lumbar

range of motion, straight leg raises were negative. Records from

this visit reflect no recommendations for surgical intervention, with

the claimant advised to continue pain management and encouraged

to lose weight (Exhibit 30F/4).

(Tr. 21-22).

The ALJ also discussed August 2019 records from the Dodson Avenue Health Clinic,

which reflected the provider’s finding that, upon examination, Plaintiff had no abnormalities (Tr.

22, 828). The provider recommended Plaintiff exercise for “30-45 minutes most days of the week”

(Tr. 830), with, as the ALJ put it, “no proffered limitations or restrictions.” (Tr. 22). Plaintiff was

instructed to return in three months (Tr. 830). Finally, the State agency physicians found, initially

and on reconsideration, that Plaintiff could sit for up to six hours out of an eight-hour workday

with normal breaks (see, e.g., Tr. 63). The ALJ found their opinions partially persuasive, rejecting

their opinions concerning Plaintiff’s ability to stand and walk to Plaintiff’s favor (Tr. 23).

The ALJ’s decision demonstrates that he considered the factors of supportability and

consistency in evaluating Dr. Goewey’s opinions. Although the ALJ did not specifically use the

terms “supportability” and “consistency,” and even if this term omission constitutes error, the

Court finds it is harmless at most. In this case, the ALJ’s articulation is sufficient to allow the

Court to review the ALJ’s evaluation of these factors and to determine that the ALJ’s evaluation

is supported by substantial evidence. See Hardy v. Comm’r of Soc. Sec., No. 2:20-cv-4097, 2021

20

WL 4059310, at *4 (S.D. Ohio Sept. 7, 2021) (ALJ’s failure to use the terms “supportability” and

“consistency” in analyzing medical opinion, “even if error, was harmless”). Contrary to Plaintiff’s

position, the decision reflects a “logical bridge between the evidence and the result.” [Doc. 21 at

Page ID # 1163 (quoting Pollaccia v. Comm’r of Soc. Sec., No. 09-cv-14438, 2011 WL 281044,

at *6 (E.D. Mich. Jan. 6, 2011)].

Plaintiff also lists a number of notations and entries in her medical record which she claims

are consistent with Dr. Goewey’s opinion. The ALJ at least references many of these in his

discussion of Plaintiff’s treatment history, quoted above. It is not necessary to go through each of

these records because even if they do tend to support Plaintiff’s position and her overall disability

claim, they do not change the fact that the ALJ’s consideration of Dr. Goewey’s opinion was proper

and is supported by substantial evidence.

Two issues remain. First, Plaintiff argues the ALJ’s decision lacks substantial support

because the hypothetical the ALJ posed to the VE did not limit Plaintiff to three or four hours of

sitting daily and did not include any mental limitations [Doc. 21 at Page ID # 1162]. As discussed

above, the Court finds Plaintiff has failed to show harmful error with the ALJ’s assessment of

Plaintiff’s depression-related mental limitations or with the ALJ’s rejection of Dr. Goewey’s

opinion regarding Plaintiff’s ability to sit. Because Plaintiff’s argument concerning the

hypothetical question depends on the success of these other arguments, it fails as well.

Second, Plaintiff argues the ALJ “created an inconsistency between his RFC and his

assessment of Dr. Goewey’s opinion.” [Doc. 21 at Page ID # 1162]. Plaintiff is referring to the

fact that, in assessing RFC, the ALJ found Plaintiff could stand/walk “not more than 4 hours per

eight-hour day” (Tr. 20 (emphasis added)). When discussing Dr. Goewey’s opinions, the ALJ

found “secondary to low back pain and bilateral knee pain, I find the claimant is limited to

21

standing/walking no more than two (2) hours during an 8-hour workday.” (Tr. 22 (emphasis

added)). Plaintiff is correct that the ALJ does not reconcile this inconsistency. Nevertheless, as

the Commissioner points out, any error in this regard is harmless. This is because the ALJ also

noted Plaintiff’s RFC included the full range of sedentary exertional work (with postural

limitations) and the ALJ identified sedentary occupations available to Plaintiff including table

worker, assembler, and sealer (Tr. 20, 25). Sedentary work requires about two hours of

standing/walking per eight-hour workday. See SSR 83-10, 1983 WL 31251, at *5 (SSA Jan. 1,

1983); see also 20 C.F.R. § 404.1567(a). Harmless error does not justify remand. As this Court

and the Sixth Circuit have repeatedly held, where “remand would be an idle and useless formality,”

courts are not required to “covert judicial review of agency action into a ping-pong game.” Wilson

v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (quoting NLRB v. Wyman-Gordon, 394

U.S. 759, 766 n.6 (1969) (plurality opinion)).

V. CONCLUSION

For the foregoing reasons, it is ORDERED that:

(1) Plaintiff’s motion for summary judgment [Doc 20] is DENIED;

(2) the Commissioner’s motion for summary judgment [Doc. 26] is GRANTED;

and

(3) the Commissioner’s decision denying benefits is AFFIRMED.

SO ORDERED.

ENTER:

s/fâátÇ ^A _xx

SUSAN K. LEE

UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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