Opinion

Rojas Figueroa v. Commissioner of Social Security

Court: District Court, N.D. Ohio
Filed: Nov 22, 2024
Cited by: 0 cases
Authority: More cited than 33.1%

“The ALJ parsed the medical reports and made necessary decisions about which medical findings to credit, and which to reject. Contrary to [the claimant’s] contention, the ALJ had the authority to make these determinations.”

How later courts described this case

“The ALJ parsed the medical reports and made necessary decisions about which medical findings to credit, and which to reject. Contrary to [the claimant’s] contention, the ALJ had the authority to make these determinations.”
“Generally, . . . we review decisions of administrative agencies for harmless error.”
“[A] decision . . . will not be upheld [when] the SSA fails to follow its own regulations and that error prejudices a claimant on the merits or deprives the claimant of a substantial right.”
holding that the ALJ erred by not conducting any Step Three evaluation of the claimant’s physical impairments, when the ALJ found that the claimant had the severe impairment of back pain

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROSALIE ROJAS FIGUEROA, ) Case No. 1:24-cv-00282

)

Plaintiff, ) JUDGE BENITA Y. PEARSON

)

v. ) MAGISTRATE JUDGE

) REUBEN J. SHEPERD

COMMISSIONER OF )

SOCIAL SECURITY, )

) REPORT AND RECOMMENDATION

Defendant. )

I. Introduction

Plaintiff, Rosalie Rojas Figueroa (“Rojas Figueroa”), seeks judicial review of the final

decision of the Commissioner of Social Security, denying her applications for disability

insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of

the Social Security Act. This matter is before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3),

and Local Rule 72.2(b). Because the ALJ applied proper legal standards and reached a decision

supported by substantial evidence, I recommend that the Commissioner’s final decision denying

Rojas Figueroa’s applicaitons for DIB and SSI be affirmed.

II. Procedural History

Rojas Figueroa filed for SSI on September 7, 2021, and DIB on September 10, 2021,

alleging a disability onset date of January 1, 2020. (Tr. 22). The claims were denied initially and

on reconsideration. (Tr. 142, 147, 159, 162). She then requested a hearing before an

Administrative Law Judge. (Tr. 168). Rojas Figueroa, represented by counsel, and a vocational

expert (“VE”) testified before the ALJ on April 10, 2023. (Tr. 50-79). On April 26, 2023, the

ALJ issued a written decision finding Rojas Figueroa not disabled. (Tr. 19-43). The Appeals

Council denied her request for review on December 20, 2023, making the hearing decision the

final decision of the Commissioner. (Tr. 1-3; see 20 C.F.R. §§ 404.955, 404.981). Rojas

Figueroa timely filed this action on February 14, 2024. (ECF Doc. 1).

III. Evidence

A. Personal, Educational, and Vocational Evidence

Rojas Figueroa was 40 years old on the alleged onset date, making her a younger

individual according to Agency regulations. (See Tr. 41). She has limited education. (See id.). In

the past, she worked as a fast-food manager, home health aide, and shipping and receiving clerk.

(Tr. 72-73).

B. Relevant Medical Evidence1

1. Physical Health

Throughout the course of Rojas Figueroa’s medical appointments, encounter notes

indicate Rojas Figueroa was alert and oriented with normal mood, affect, and behavior. (Tr. 405,

407-08, 414, 417, 553, 561, 566, 569, 778, 784, 952, 970, 1031, 1054, 1185). It was also

consistently noted that Rojas Figueroa’s musculoskeletal system had a normal range of motion.

(Tr. 405, 407, 414, 417, 550, 561, 666, 774, 784, 951, 1030, 1053-54, 1180). Any record

indicating different findings will be detailed below.

1 Rojas Figueroa only raises error with respect to the ALJ’s evaluation of her migraines, pain,

obesity, and cane usage. (See ECF Doc. 8). I therefore limit the review of the medical record

only to the evidence relevant to those claims. Any arguments concerning her other physical or

mental impairments are deemed waived. See Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th

Cir. 2013).

On April 29, 2020, Rojas Figueroa presented to an appointment with Amy Ebbitt, APRN,

CNP. (Tr. 415). One of Rojas Figueroa’s chief complaints was headaches with sensitivity to

light; the pain was worse when looking left or right. (Id.). Her headache frequency had slightly

elevated from the previous month, but Rojas Figueroa reported that the headaches resolve with

Imitrex and she only occasionally needed to take Excedrin. (Tr. 415-16). She was prescribed

Sumatriptan 100 mg as needed for migraines. (Tr. 417). Rojas Figueroa’s body mass index

(“BMI”) was noted at 47.63, but she reported that she had lost some weight recently. (Tr. 416).

She was listed as obese with no signs of distress and her musculoskeletal system had a normal

range of motion. (Tr. 417). She was alert and oriented with normal mood, affect, and behavior.

(Id.). CNP Ebbitt counseled Rojas Figueroa on her BMI, planned a follow up, and referred her to

Dietetics Service. (Id.).

During a May 29, 2020 follow up with CNP Ebbitt, Rojas Figueroa reported that she had

not met with the dietician or followed a calorie restrictive diet, but had been losing weight owing

to her increased activity. (Tr. 412-13). Rojas Figueroa also reported increased neck pain that

radiated to her right shoulder, worse at bedtime. (Tr. 413). Upon examination, Rojas Figueroa’s

neck had a normal range of motion. (Tr. 414).

On February 7, 2021, Rojas Figueroa presented to the emergency room after falling down

three stairs. (Tr. 551). Encounter notes indicate that after the fall she was able to ambulate and

bear weight. (Id.). She had normal gait and ambulated with a steady gait out of the emergency

department. (Tr. 553; 558).

At a March 9, 2021 hypertension follow up appointment with Katy Foutz, RN, Rojas

Figueroa reported that her “head wants to explode-temple areas/frontal[.]” (Tr. 409). She

reported relief after applying Vicks and drinking a lot of water. (Id.). RN Foutz provided

hypertension education and encouraged effort toward healthy eating and increased activity. (Tr.

410).

Rojas Figueroa presented to CNP Ebbitt on April 14, 2021 with concerns of ongoing

shoulder pain and progressive lower back pain. (Tr. 405). She reported trouble sleeping as a

result because the pain increased with periods of inactivity or sitting. (Id.). Flexeril and Tramadol

were either ineffective or minimally effective to treat pain. (Tr. 406). Upon examination, CNP

Ebbitt noted that Rojas Figueroa looked uncomfortable but not in distress. (Tr. 407). While

examinations indicated a normal range of motion and gait, Rojas Figueroa reported arthralgias,

back pain, gait problems, and myalgias. (Id.).

On June 3, 2021 Rojas Figueroa reported to CNP Ebbitt numbness in her legs and an

inability to walk or sit for long periods. (Tr. 404). The numbness resulted in her falling twice.

(Id.). She also complained of worsening lower back pain that radiated through her hip to her knee

and sometimes beyond. (Id.). She reported the pain as a 5/5. (Id.). She further reported that her

neck pain was improving with physical therapy and injections. (Id.). Rojas Figueroa was referred

to physical therapy and prescribed Gabapentin 100 mg for pain. (Tr. 405).

On July 1, 2021, Rojas Figueroa presented to the emergency room with complaints of

right knee pain without injury. (Tr. 504). The pain was worse with weight bearing and extension.

(Tr. 505). She expressed some internal knee instability when walking. (Tr. 504). Upon

examination, her knee had no swelling, deformity, erythema, or ecchymosis. (Tr. 506). She had

normal range of motion but some tenderness. (Id.). She was able to rise from the seated position

and ambulate but was mildly antalgic. (Id.). She was alert and oriented with cooperative

behavior. (Id.).

At a July 7, 2021 appointment with Kim Stearns, M.D., Rojas Figueroa complained of

right knee pain. (Tr. 504). She experienced pain going up and down stairs and getting up from a

seated position. (Id.). Dr. Stearns noted that x-rays showed a very large intra-articular loose

body just posterior to the notch. (Tr. 504). The knee pain was treated a week later with Marcaine

1cc and Depo-Medrol injections. (Tr. 500).

Rojas Figueroa presented for an appointment with CNP Ebbitt on September 24, 2021,

with a complaint of continuous overall body aches that caused her to leave her job, as well as

right arm tingling. (Tr. 782). CNP Ebbitt prescribed Gabapentin 300 mg for pain. (Tr. 784).

Encounter notes also indicate that Rojas Figueroa has a history of major depression with suicidal

ideation that began when she was a teenager with the most recent episode being in 2004. (Tr.

783). Rojas Figueroa had been taking Zoloft but discontinued taking it due to improvement and

nausea. (Id.). CNP Ebbitt referred her to behavioral health counseling and prescribed Duloxetine

20 mg. (Tr. 784).

On December 3, 2021, Rojas Figueroa underwent an arthroscopy on the right knee and

synovial debridement performed by Dr. Stearns. (Tr. 689).

Rojas Figueroa presented to the emergency room on December 5, 2021, complaining of

left side facial pain, headache, and hypertension. (Tr. 673). Rojas Figueroa presented using a

walker due to her recent knee surgery and right leg weakness associated with the surgery. (Id.).

Rojas Figueroa’s headache began on December 3, 2021, and was on the left side of her forehead

and temple with sharp pain. (Tr. 673, 679). This headache was different than her typical

migraines as those tended to affect the front of her head with throbbing pain. (Tr. 673). She was

also experiencing left arm numbness and hand weakness. (Tr. 679). The oxycodone she was

taking for her knee provided no relief to her headache. (Tr. 673). She did not take her Imitrex out

of fear that it would interfere with the oxycodone. (Tr. 674). The treating physician noted that

this was a complex migraine exacerbated by Rojas Figueroa’s underlying anxiety. (Tr. 679).

There were no objective signs of weakness in her upper extremities; upon examination she had

equal grip strength bilaterally, equal push pull bilaterally, was able to hold both arms up for 10

seconds without any noted trauma, and strength with dorsal and plantar flexion bilaterally was

listed as 5/5. (Tr. 676). A CT scan showed no acute abnormality, but Rojas Figueroa was going

to be admitted to undergo an MRI. (Tr. 679). Rojas Figueroa left the emergency room, against

medical advice, stating she had been waiting too long for a floor bed. (Tr. 684).

Rojas Figueroa came back to the emergency room on the advice of her primary care

physician on December 6, 2021. (Tr. 664). She presented with continued intermittent headache

and left side weakness. (Id.). A CTA of her head and neck revealed patent intracranial arterial

vasculature, without proximal occlusion or focal stenosis and stenosis; tiny 1.5mm inferolaterally

directed prominence from the right M1 segment favored to reflect small infundibulum. (Tr. 668).

There was no evidence of aneurysm otherwise. (Id.). Given this CTA impression, Rojas Figueroa

was discharged and instructed to follow up with neurology. (Tr. 670).

At a December 8, 2021 appointment with Brian Bouchard M.D., Dr. Bouchard reviewed

the CTA from Rojas Figueroa’s emergency room visit. (Tr. 775). Dr. Bouchard noted that the

only abnormality was a slightly elevated white blood count which was possibly a viral syndrome

and noted no red flag symptoms. (Id.). He emphasized hydration, rest, and a low stimulation

environment for a few days. (Id.).

On March 21, 2022, Rojas Figueroa saw Anne Wise, M.D. for ongoing lower back pain

that radiated down her right leg. (Tr. 970). Rojas Figueroa reported pain in her left leg and when

sitting and standing. (Id.). Rojas Figueroa requested a cane. (Id.). Dr. Wise prescribed a cane as

needed, Prednisone 50 mg, and a 5% Lidocaine pouch. (Tr. 971).

On March 20, 2022, Rojas Figueroa presented to the emergency room for bilateral foot

pain and burning. (Tr. 1051-52). After obtaining x-rays, the attending physician’s impression

was degenerative changes, prominent spurs of the calcaneus. (Tr. 1054).

Rojas Figueroa started attending physical therapy for her back and knee pain on March

29, 2022. (Tr. 1047). Her pain interfered with sitting, walking, standing, rising, climbing stairs,

bending, heavy exertion, lifting, working, and sleeping. (Id.). Her therapy prognosis was good

but may be limited due to the chronic nature of impairments and limited tolerance to activity.

(Id.). During this appointment, her gait was antalgic with decreased cadence. (Tr. 1050). Rojas

Figueroa attended aquatic physical therapy twice a week for eight weeks. (Tr. 1011; 1015; 1019;

1024; 1026; 1034; 1036; 1044). During her May 2, 2022 session, Rojas Figueroa fell and was

advised by her doctor to use heat and cold packs as needed on her knee and ankle. (Tr. 1034).

Following the fall, Rojas Figueroa presented to her May 12, 2022 appointment with a cane. (Tr.

1027). Notes from her June 9, 2022 appointment indicate that she demonstrated no improvement

in rising from a chair, standing, walking, stair negotiation, bending, lifting, physical activities,

and recreational activities with a prognosis of multiple co-morbidities. (Tr. 1019). She had made

minimal improvement in rising from a chair and walking by her June 29, 2022 appointment. (Tr.

1012).

On April 20, 2022, Rojas Figueroa established care with David A. Harrison, PA-C, for

sacral area pain. (Tr. 1040). Her gait was noted as antalgic. (Tr. 1043). PA-C Harrison prescribed

Medrol and Tizanidine. (Id.).

On May 11, 2022, Rojas Figueroa saw Dr. Stearns complaining of knee pain after falling.

(Tr. 1032). Upon examination, Dr. Stearns noted the right knee had a trace effusion with mild

crepitation and guarding in motion 0 to 110 degrees. (Id.). X-rays showed mild degenerative

changes but no fracture. (Id.). Dr. Stearns gave Rojas Figueroa an injection of Marcaine and

Depo-Medrol. (Id).

That evening, Rojas Figueroa presented to the emergency room for swelling of her left

foot. (Tr. 1029). On examination, there was no obvious swelling to the left foot, ankle, or lower

leg but Rojas Figueroa was complaining of pain in those areas. (Tr 1031). She was told to rest,

elevate her foot, and take Tylenol. (Id.).

At a June 2, 2022 follow up appointment with PA-C Harrison, Rojas Figueroa reported

no improvement in pain after six weeks of physical therapy. (Tr. 1022). PA-C Harrison ordered

an MRI for possible injection planning. (Tr. 1024).

During a June 8, 2022 appointment with Katy Foutz, RN, Rojas Figueroa reported her

pain was stable. (Tr. 947). For pain, she took Percocet, used hot and cold compresses, exercised,

and attended physical therapy. (Id.).

Rojas Figueroa presented for an appointment with CNP Ebbitt on July 12, 2022. (Tr.

1275). She reported having a severe migraine for six days that throbbed on the right side of her

head. (Id.). She also had nausea without vomiting and photophobia. (Id.). She was prescribed

Trizatriptan 10 mg for her migraine and instructed to return the next day if migraine persisted.

(Tr. 1276).

Rojas Figueroa saw PA-C Harrison on July 14, 2022. (Tr. 1255). PA-C Harrison noted

mild bilateral hypertrophic facet arthropathy contributing to no more than mild right and no

substantial left foraminal narrowing, patent spinal canal at L4-L5 and mild bilateral hypertrophic

facet arthropathy contributing to no more than mild right and no substantial left foraminal

narrowing, patent spinal canal at L5-S1. (Tr. 1266).

Rojas Figueroa presented to the emergency room on July 30, 2022, complaining of knee

pain. (Tr. 1177). Her symptoms were suspected to be secondary to Baker’s cyst versus chronic

symptoms from large osteochondral body present in posterior joint space. (Tr. 1186-87). She was

advised to rest, elevate, and use NSAIDs and ice before being discharged. (Tr. 1187).

Rojas Figueroa presented for an appointment with Dr. Stearns on August 17, 2022

regarding her knee. Upon exam, Dr. Stearns noted motion of 0 to 130 degrees, mild joint line

tenderness, no significant swelling in popliteal area or instability, and negative Lanchman and

McMurray tests. (Tr. 1153). Dr. Stearns prescribed Daypro 600mg and gave her an injection of

Marcaine and Depro-Medrol. (Id.).

Rojas Figueroa saw PMHNP Smith for medication management on August 18, 2022. (Tr.

1310). She reported worsening depression and anxiety due to familial deaths, financial hardship,

and chronic pain. (Tr. 1311). Rojas Figueroa was alert with appropriate insight and judgment but

had depressed and anxious mood. (Tr. 1312).

On August 31, 2022, Rojas Figueroa saw Kush Goyal, M.D. for an intra-articular facet

injection bilaterally at L4-L5 and L5-S1. (Tr. 1139). After the injection, Rojas Figueroa reported

her pain decreased form a seven to zero. (Tr. 1140).

Rojas Figueroa saw RN Foutz for a pain review on September 12, 2022. (Tr. 1358).

Rojas Figueroa reported her migraine medication, Maxalt, was not working to alleviate her

migraines. (Tr. 1359). She had a migraine on September 9, 2022, and took Percocet to obtain

relief. (Id). She reported knee and back pain daily as well as pain in her hands and migraines that

come and go. (Id.). RN Foutz noted that no treatments have helped Rojas Figueroa’s pain outside

of occasional use of Percocet. (Tr. 1364).

At a September 15, 2022 medication management appointment, Rojas Figueroa reported

back and leg pain contributed to her low mood and lack of motivation. (Tr. 1384). Her general

health was labeled as “generally poor,” and her reported mood was depressed and anxious. (Tr.

1380-81). Rojas Figueroa also reported recent memory impairment. (Tr. 1381).

Rojas Figueroa presented to an appointment with CNP Ebbitt regarding her migraines on

September 23, 2022. (Tr. 1645). She reported that her medication was not helping, and she was

getting migraines “on and off.” (Id.). CNP Ebbitt referred her to neurology and prescribed

Eletriptan 40 mg. (Tr. 1646).

Rojas Figueroa began physical therapy on September 30, 2022, with an anticipated end

date of November 29, 2022. (Tr. 1613). Her chief complaint was back and right knee pain. (Tr.

1613). Notes indicate that she was a fall risk, and that she fell on the stairs a few days before the

appointment. (Tr. 1613-14). Her prognosis for therapy was fair due to limited tolerance to

activity and the chronic nature of her impairments. (Tr. 1613). She entered therapy using a quad

cane, and her gait was antalgic with decreased cadence. (Tr. 1617). Her therapy goals included

improving her lumbar range of motion to within normal limits, increase lower extremity strength,

reduce pain, walk stairs without falling, proper posture, and improve 10-meter walk time. (Tr.

1605-06).

On November 11, 2022, Rojas Figueroa presented to Nicole Daimer APRN-CNP for

migraines. (Tr. 1541). She reported having over six migraines per month that lasted 48 to 72

hours. (Tr. 1566). Her migraines were located bilateral/frontal temporal and left occipital. (Id.).

The left occipital location was new as was intermittent ringing in her right ear. (Id.). She

experienced photophobia, nausea, and vomiting with her migraines and her symptoms were

worse with activity. (Id.). She was able to stand without upper body assistance. (Tr. 1570). CNP

Daimer ordered an MRI and MRA which showed few scattered punctate foci of T2/FLAIR

hyperintensity in the supratentorial white matter, which were nonspecific, and overall mild in

extent, and predominantly in the bilateral frontal subcortical white matter. (Tr. 1489). No acute

intracranial abnormality was found. (Tr. 1491). There was mild cervical spine degenerative

changes as detailed, without high-grade canal or foraminal narrowing, and no significant cord

compression or cord signal abnormality. (Id.).

On November 28, 2022, Rojas Figueroa presented to a medication management

appointment with NP Smith. (Tr. 1766). Her depression, anxiety, and pain had worsened with

stress exacerbated by financial hardships. (Tr. 1768-69). NP Smith continued her medications.

(Tr. 1769).

She presented for an appointment with CNP Ebbitt on January 20, 2023. (Tr. 1833). She

reported that she felt her anxiety had improved but there was still dysfunction regarding finances

and physical limitations. (Tr. 1833-34). Encounter notes indicate that Rojas Figueroa had been

referred to neurology for her migraines but that she had not yet scheduled an appointment. (Tr.

1834). Her gait was marked as abnormal, antalgic. (Id.).

Rojas Figueroa saw PA-C Harrison on January 23, 2023, for a six month follow up

appointment regarding her lumbar back and right leg pain. (Tr. 1426). She reported feeling the

same with unchanged symptoms. (Id.). PA-C Harrison noted that Rojas Figueroa’s MRI showed

no neuro compressive pathology, increased her Gabapentin prescription, referred her to physical

therapy, and prescribed Mobic. (Tr. 1428).

2. Mental Health

Rojas Figueroa initiated mental health care with Natalie Stark LISW-S on November 4,

2021, and continued through February 10, 2023. (Tr. 772, 775, 777, 1288, 1325, 1633, 1684,

1752, 1789, 1805, 1818, 1851, 1883). Throughout her sessions, Rojas Figueroa explained that

she felt depressed as a result of her ongoing pain. (Tr. 777, 1325, 1338, 1755, 1792, 1821, 1886).

She also expressed continued struggles with migraines and stress related to finances. (Tr. 1288,

1325, 1854). At times, she became tearful when discussing her health issues and pain. (Tr. 1687).

During her December 20, 2022 session, she reported decreased energy to “fight” and felt as

though she was “being pushed to snap” with her struggles with pain and depression. (Tr. 1806).

Despite frequently reporting passive death wishing thoughts, she also reported that she had no

plan or intent because of her mother and children. (See e.g. Tr. 1806). LISW Stark noted that

Rojas Figueroa was alert throughout her sessions with appropriate or fair judgment and insight.

(Tr. 773, 776, 780, 1325, 1338, 1633, 1686, 1754-55, 1791, 1805-06, 1821, 1854, 1886). Rojas

Figueroa always reported her mood as depressed, and often also reported being anxious, angry,

worried, and/or irritated. (Tr. 773, 775, 1288, 1325, 1338, 1633, 1686, 1754-55, 1791, 1805-06,

1820-21, 1854, 1886).

Rojas Figueroa saw Alenna Smith, PMHNP, on April 26, 2022 for medication

management. NP Smith prescribed Buspar 10 mg for anxiety, and Trazadone 50 mg for

insomnia. (Tr 965).

At a June 30, 2022 medication management appointment with NP Smith, Rojas Figueroa

reported worsening depression and anxiety as a result of stress from financial hardship due to her

inability to work because of her health issues. (Tr. 943). Rojas Figueroa was alert and had

appropriate judgment, insight, and demeanor during this encounter. (Tr. 944).

Rojas Figueroa saw NP Smith for medication management on November 2, 2022. (Tr.

1699). She reported worsening depression, anxiety, and pain. (Tr. 1700). She reported depending

on a cane “many days.” (Tr. 1701). She also reported her new migraine medication was

effective. (Id.). Her reported mood was depressed, nervous, anxious and worried, but she was

alert with appropriate judgment and insight during the appointment. (Tr. 1702). NP Smith

continued all of Rojas Figueroa’s prescriptions. (Tr. 1705).

C. Medical Opinion Evidence

1. State Agency Reviewers

On December 22, 2021, state agency reviewer, Vicki Warren, Ph.D., reviewed Rojas

Figueroa’s mental health records. (Tr. 104). Dr. Warren found that Rojas Figueroa was capable

of routine tasks in a setting not requiring close focus or concentration, superficial social

interaction with familiar coworkers and supervisors, and routine tasks in a predictable setting

where changes are infrequent and easily explained. (Tr. 105). On reconsideration, Courtney

Zeune, Psy.D. agreed with these limitations. (Tr. 139).

Mehr Siddiqui, M.D., reviewed Rojas Figueroa’s health records at the initial level on

December 16, 2021. (Tr. 104). Dr. Siddiqui noted that Rojas Figueroa could occasionally lift

and/or carry 20 pounds and frequently lift and/or carry 10 pounds; stand and or walk and sit six

hours in an eight-hour workday; frequently climb ramps and stairs; never claim ladders, ropes, or

scaffolds, and she would have no limitation with balancing, stooping, kneeling, crouching, or

crawling. (Tr. 103). Further, she was limited in her right upper extremity to occasionally

reaching in front and or laterally and overhead, but unlimited with handling, fingering, and

feeling. (Tr. 104). She should further avoid concentrated pulmonary irritants and avoid all

exposure to unprotected heights. (Id.). On reconsideration, Indria Jasti, M.D. agreed with these

findings. (Tr. 124).

2. Treating Source Opinions

CNP Ebbitt filled out a Medical Source Statement on May 27, 2022. (Tr. 930-33). The

statement indicates that CNP Ebbitt treated Rojas Figueroa since August 2019 and saw her every

one or two months. (Tr. 930). Rojas Figueroa’s diagnoses were listed as fibromyalgia, cervical

spine stenosis, osteoarthritis in her right knee, hypertension, and pre-diabetes with a poor

prognosis. (Id.). CNP Ebbitt noted that Rojas Figueroa had pain in multiple joints and the spine,

fatigue, and reactive depression. (Id.). According to this statement, CNP Ebbitt found that Rojas

Figueroa could sit for 60 minutes at a time and stand for 10 minutes at a time, she did not need to

elevate her legs, she required a cane at all times due to imbalance, pain, and weakness, the cane

was needed for both standing and walking. She also found that Rojas Figueroa could

occasionally lift and carry less than 10 pounds, rarely lift and carry 10 pounds, and never lift and

carry 20 or 50 pounds. (Tr. 932). Further, she noted significant limitation with handling or

fingering, finding Rojas Figueroa could use her right and left hands 100% of the workday to

grasp, turn, and twist objects, as well as use her fingers on both hands for fine manipulations.

(Id.). However, she noted that Rojas Figueroa could only use her right and left arms to reach in

front of her 10% of the workday and could not use either arm to reach overhead. (Id.). As to an

eight-hour workday, CNP Ebbitt noted a limitation of sitting for “about 4 hours” and

standing/walking for “less than 2 hours.” (Tr. 931). Rojas Figueroa would be incapable of even

low stress work because “major depression and anxiety make work at this time impractical.” (Tr.

932-33). According to CNP Ebbitt, Rojas Figueroa would also be off task 25% or more per day.

(Tr. 932). CNP Ebbitt concluded that Rojas Figueroa’s impairments as demonstrated by signs,

clinical findings, and laboratory or test results were reasonably consistent with the symptoms and

functional limitations described. (Tr. 933).

LISW Stark completed a Mental Impairment Questionnaire on April 28, 2022, based on

her weekly treatment of Rojas Figueroa since November 2021. (Tr. 1083-84). LISW Stark listed

Rojas Figueroa’s diagnoses as severe episodes of recurrent major depressive disorder without

psychotic features; Generalized Anxiety Disorder; and Insomnia due to other mental disorder.

(Tr. 1082). For those diagnoses, Rojas Figueroa was prescribed Cymbalta 60mg, Buspar 10mg,

and Trazodone 50mg. (Id.). LISW Stark’s clinical findings that demonstrate the severity of Rojas

Figueroa’s impairments and symptoms include decreased motivation, feeling uneasy and easily

overwhelmed, suicidal ideations without plan, insomnia, fatigue/no energy, hopelessness. (Id.).

Rojas Figueroa’s prognosis was poor. (Id.). The impairments had lasted or were expected to last

at least 12 months, would cause her to be absent from work five to six days per week, and would

cause her to be off task 80% of the workday. (Tr. 1082-83). Of the various work related and day-

to-day activities listed, LISW Stark noted that Rojas Figueroa would be unable to meet

competitive standards on the following tasks: maintaining attention and concentration for

extended periods, managing regular attendance and be punctual within customary tolerances,

completing a normal workday and workweek without interruptions from psychologically based

symptoms, and performing at a consistent pace without an unreasonable number and length of

rest periods. (Tr. 1083).

3. Consultative Examination

Rojas Figueroa was referred for a psychological evaluation with Michael Faust, Ph.D.,

“to assess her mental status and the existence of any psychological condition that would impair

her ability to function on a daily basis and in an employment setting.” (Tr. 801). The evaluation

notes that Rojas Figueroa responded to all questions with fairly detailed and articulate answers.

(Tr. 804). She could not perform serial 7’s but did correctly perform serial 3’s. (Tr. 805).

However, she would become agitated and tearful when discussing her health issues. (Tr. 804).

She was withdrawn yet calm during the exam, and Dr. Faust noted that her mood appeared

depressed. (Id.). During the exam she was oriented to person, place, and time, and she

understood the purpose of the exam. (Id.). Rojas Figueroa expressed frustration with depending

on her daughter for help cooking and cleaning. (Tr. 805). Regarding leaving the house, she stated

that she does not see friends, sees her mother once a week, and goes to the grocery store with her

daughter every other week. (Id.). Rojas Figueroa expressed being depressed due to her

deteriorating health and changes in her ability to perform tasks. (Id.).

Dr. Faust noted that Rojas Figueroa’s self-report was consistent with an adjustment

disorder with mixed anxiety and depressed mood, secondary to her health issues. (Id.). She did

not exhibit any limitations understanding simple or complex instructions. (Tr. 806). However,

Dr. Faust noted that she may have difficulty remembering verbally presented instructions due to

her depression based on her performance during the exam. (Id.). She did exhibit difficulty with

attention, concentration, persistence, and pace. (Id.). She had difficulty with task competition and

sustained attention due to presenting depressed and emotional. (Id.). Rojas Figueroa struggled

with significant adjustment difficulties including anxiety and depression, which Dr. Faust found

would impact her ability to interact with others and respond to supervision and coworkers. (Id.).

Finally, Dr. Faust noted that Rojas Figueroa could be expected to have some difficulty

responding appropriately to work pressures but had the mental ability to manage her funds

should she be awarded benefits. (Tr. 807).

D. Administrative Hearing Evidence

Rojas Figueroa lives in a two-story house with her adult son. (Tr. 57). She has a second-

floor bedroom. (Tr. 57). Rojas Figueroa is 5’4” tall and weighs 287 pounds. (Tr. 57). She

completed the tenth grade in school. (Tr. 58). She has a driver’s license but cannot drive for

longer than 30 to 40 minutes at a time. (Tr. 57).

When asked to describe a typical day, Rojas Figueroa stated when she wakes up, she

struggles to get out of bed due to pain. (Tr. 61). She only sleeps two to three hours per night

leading her to have low energy and concentration. (Tr. 69). It takes her significant time to get out

of bed, get into the shower, and get dressed. (Tr. 61). The bathtub in her home is “high” making

it difficult to lift her knee to get into the shower when she is in pain. (Tr. 68). When her pain is

exceptionally bad, she requires a chair in the shower. (Id.). She stated she cannot cook on the

stove because her hands go numb which has led to her burning herself. (Tr. 61). She also cannot

stand for a long period of time to prepare food. (Tr. 67). As a result, everything she eats is either

microwavable or simple to prepare like cereal. (Tr. 61). She can do chores, but when she helps

with the laundry she has to “confine” herself to the basement because she “can’t keep going up

and down the stairs[.]” (Tr. 62). She also helps with doing the dishes but cannot stand for too

long. (Id.). She described 30 minutes as being too long to stand to do dishes. (Tr. 67). Sweeping

and vacuuming are difficult because of pain in her legs and the chores require her to bend her

back and knee. (Tr. 67-68).

Rojas Figueroa explained that she is right-handed but struggles to use her right hand due

to pain, causing her to attempt tasks with her left hand. (Id.). As a result of needing to use her

non-dominant hand she struggles with doing “anything” including combing her hair and eating.

(Tr. 67).

She feels pain, mostly on her right side, all day long. (Tr. 61). Because of the pain, she

does not go out or have a social life. (Id.). She no longer has any hobbies. (Tr. 63). She only

leaves her house to go to doctor appointments. (Id.). However, she stated she does go shopping

“sometimes” but unless the store has a motorized cart available, she cannot be in the store for a

long time. (Tr. 68-69). She takes gabapentin for pain, but also takes OxyContin six or seven

times a month for exceptionally bad pain. (Tr. 62).

Asked if she uses anything to help her walk, she responded that she uses a cane everyday

if she needs to walk and to go up and down stairs to give herself “extra grip.” (Tr. 62-63). She

explained that her knee goes numb and gives out at times, causing her to fall. (Tr. 65). She uses

the cane for both standing and walking, as well as to rise from a sitting position and vice-versa.

(Id.). When using the cane, she can stand for approximately one hour, walk for 10 to 15 minutes,

and sit for 15 to 20 minutes. (Id.). At the time of the hearing, she had been using the cane for six

months. (Tr. 63). She started using it because she was falling weekly. (Id.). Rojas Figueroa also

stated that she wears braces on her right knee and hand. (Tr. 62-63).

Asked about her back pain, Rojas Figueroa stated she experiences lower back pain that

radiates down her right leg three to four times per week. (Tr. 64). On average, the pain is a nine

out of ten. (Id.). She also experiences numbness and tingling. (Id.). To treat her back pain, she

has “had some nerve blockage[.]” (Id.). She also receives physical therapy for her back, knee,

and shoulder. (Id.). At the time of the hearing, she had been going to physical therapy once or

twice a week for approximately one year but stated that she did not feel it was helping. (Tr. 60-

61).

Rojas Figueroa described her neck pain as stabbing “with a basting needle,” that radiates

down her back and leg. (Tr. 65-66). It also radiates down her right arm into her fingers. (Tr. 66).

She also experiences migraines three times per month that last two to three days. (Id.). When she

experiences a migraine, she rubs Vicks on her forehead, stays in a dark room, and takes

medication. (Id.).

She also struggles with mental health. (Tr. 63). She feels as though she is a burden to

people and that she “shouldn’t be here.” (Id.). Her energy level is low, and she does not feel

motivated “to keep going” or to keep dealing with “everything going on in [her] body.” (Tr. 69).

She experiences crying spells twice a day but tries to do it when she is alone. (Tr. 70). She

described her mood as angry, hurt, and depressed. (Id.). To treat her mental health conditions,

Rojas Figueroa sees a therapist and a psychiatrist; she also takes Cymbalta. (Tr. 63-64). These

help “a little.” (Tr. 64).

Rojas Figueroa last worked on September 5, 2021, at Burger King where she had worked

for approximately two years as a general manager. (Tr. 58). In that role, Rojas Figueroa ran the

floor and drive-thru, took orders, made schedules, and held crew meetings. (Id.). The job

required her to lift 20 to 25 pounds. (Tr. 59). She left that job because she could not stand or lift

as required and could not be on her feet for more than an hour before needing to stop. (Id.).

Rojas Figueroa also previously worked for Hearty Heart Home Health taking care of

elderly individuals, helping them shower, preparing meals, and ensuring they took their

medication. (Id.). Asked how much she had to lift in that job, Rojas Figueroa responded: “It

depends on the weight of a person.” (Id.). Additionally, Rojas Figueroa was previously employed

at Buckeye Business Products for approximately seven years, working in the shipping and

receiving department. (Id.). This job required her to lift between 30 to 50 pounds. (Id.).

Asked why she believes she is unable to work, Rojas Figueroa stated that she cannot

stand for more than an hour before her legs go numb, she cannot lift anything with her right

shoulder, nor pull anything with her hands, and as a result of a recent carpal tunnel surgery her

“whole right side will go out.” (Tr. 60). Her doctors intend to perform carpal tunnel surgery on

her left hand after she heals from surgery on her right. (Tr. 61).

The VE testified that Rojas Figueroa’s past work included fast food manager, DOT

185.137-010, SVP 5 indicating a skilled occupation, classified as light, performed at medium;

home health aide, DOT 354.377-014, SVP 3, semiskilled, classified as medium, performed at

heavy; and shipping and receiving clerk, DOT 222.387-050, SVP 5, skilled, classified and

performed at medium. (Tr. 72-73).

According to the VE, a hypothetical individual of Rojas Figueroa’s same age, education,

and work experience who could perform work at the light exertion level with never climbing

ladders, ropes, or scaffolds, occasionally climbing ramps and stairs, balancing, stooping,

kneeling, crouching, and crawling, could perform occasional overhead reaching and frequent

front or lateral reaching with the dominant right upper extremity, could perform frequent

pushing, pulling, handling, and fingering with the bilateral upper extremities, should avoid

concentrated exposure to fumes, odors, dust, gases, and poor ventilation, should avoid heights,

can understand, carry out, and remember simple instructions, routine, and repetitive tasks, cannot

perform work requiring specific production rate, assembly line work, can meet production

requirements that allow “flexible go or piece2,” can maintain focus, persistence concentration,

pace, and attention to engage in such tasks for two-hour increments for eight-hour workdays

within the confines of normal work breaks and lunch periods, can deal with occasional changes

in a routine work setting but changes should be explained in advance, can tolerate occasional and

2 The transcript from the hearing demonstrates that this phrase was used by the ALJ when asking

the VE about the first hypothetical individual. The undersigned is unfamiliar with this phrase and

its meaning; however, I note this portion of the hearing is not at issue.

superficial interaction with supervisors, coworkers, and the general public, contact includes what

is necessary for general instruction, task completion, or training, and the interaction is limited to

speaking, signaling, taking instructions, asking questions, and as similar contact, is unable to be,

negotiate, direct, or supervise others, with no arbitration or confrontation, and could not perform

tandem tasks could not perform Rojas Figueroa’s past work. (Tr. 73-74).

However, that hypothetical individual could perform the jobs of mail clerk, DOT

209.687-026, SVP 2, unskilled, light exertion, with 40,000 jobs in the national economy;

housekeeper, DOT 323.687-014, SVP 2, unskilled, light, with 175,000 jobs in the national

economy; and merchandise marker, DOT 209.587-034, SVP 2, unskilled, light, with 90,000 jobs

in the national economy. (Tr. 74). The VE noted that he used his training and experience “to

reference the occasional overhead reach and the frequent front and lateral reaching that it seems

that just aren’t offered in the DOT and SCO,” for this hypothetical person. (Tr. 74-75).

Further, a hypothetical individual with the same limitations as the first, but was limited to

sedentary exertion could perform the jobs of document preparer, DOT 249.587-018, SVP 2,

unskilled, sedentary, with 17,000 jobs in the national economy; table worker, DOT 739.687-182,

SVP 2, unskilled, sedentary, with 2003 jobs in the national economy; and film touchup screener,

DOT 726.684-110, SCP 2, unskilled, sedentary, with 2,900 jobs in the national economy. (Tr.

75).

If the second hypothetical individual was further limited to needing a cane for

ambulation, they could not perform the jobs of the first hypothetical individual because that

person “would be a one-handed person while standing and walking, which customarily is five

3 The transcript from the hearing indicates that the VE testified there were 200 jobs in the

national economy, however the ALJ’s decision notes that there are 8,200 jobs in the national

economy. (Tr. 42).

and a half, six hours a day light work.” (Id.). However, that hypothetical person could perform

the sedentary work described for the second hypothetical individual. (Id.).

If a hypothetical individual needed a cane in order to balance and transition from a seated

to standing position after 15 minutes of sitting and needed the cane to remain standing, the VE

stated that individual could not perform sedentary work. (Tr. 77). Further, if a hypothetical

individual could only sit for four hours and stand or walk for less than two hours, that would be

work preclusive. (Id.). A hypothetical individual that could only reach in front of their body with

the bilateral upper extremities 10% of the workday, they would not be able to perform the light

or sedentary jobs described because “sedentary and light jobs involve frequent reaching 66% of

the time[.]” (Id.). The limitation on reaching to 10% would be work preclusive. (Id.).

If the first, second, or third hypothetical individual was limited to occasional handling,

fingering, and feeling, with the bilateral upper extremities, that would be work preclusive at the

light and sedentary level. (Id.).

Finally, the VE testified that a person can be off task no more than 10% of the time to

maintain employment and can incur no more than one absence per month on an ongoing basis to

sustain competitive employment. (Tr. 76).

IV. The ALJ’s Decision

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

Act through December 31, 2026.

2. The claimant engaged in substantial gainful activity during the following

periods: the alleged onset date through September 5, 2021 (20 CFR

404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. However, there has been a continuous 12-month period(s) during which the

claimant did not engage in substantial gainful activity. The remaining

findings address the period(s) the claimant did not engage in substantial

gainful activity.

4. The claimant has the following severe impairments: depression, anxiety,

obesity, cervical spine stenosis, carpal tunnel syndrome, cubital tunnel

syndrome, tenosynovitis of the wrist, right knee osteoarthritis, lumbar

degenerative disc disease, right shoulder partial supraspinatus tear, and

adjustment disorder with mixed anxiety and depressed mood (20 CFR

404.1520(c) and 416.920(c)).

5. The claimant does not have an impairment or combination of impairments

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

in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

6. After careful consideration of the entire record, the undersigned finds that

the claimant has the residual functional capacity to perform sedentary work

as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant can

never climb ladders, ropes, or scaffolds; can occasionally climb ramps and

stairs; can occasionally balance, stoop, kneel, crouch, and crawl; can

occasionally reach overhead and frequently reach in the front and laterally

with the dominant right, upper extremity; can frequently push, pull, handle,

and finger with the bilateral upper extremities; must avoid concentrated

exposure to fumes, odors, dusts, gases, and poor ventilation; must avoid

unprotected heights; can understand, carry out, and remember simple

instructions and routine, repetitive tasks; cannot perform work requiring a

specific production rate, such as assembly-line work; can meet production

requirements that allow a flexible and goal-oriented pace; can maintain the

focus, persistence, concentration, pace, and attention to engage in such tasks

for two-hour increments, for eight-hour workdays, within the confines of

normal work breaks and lunch periods; can deal with occasional changes in

a routine work setting, but changes should be explained in advance; can

tolerate occasional and superficial interactions with supervisors, coworkers,

and the general public and contact still includes what is necessary for

general instruction, task completion, or training, and the interaction is

limited to speaking, signaling, taking instructions, asking questions, and

similar contact; can never mediate, negotiate, or direct or supervise others;

can never perform arbitration or negotiation; can never perform tandem

tasks; and requires a cane for ambulation.

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

and 416.965).

8. The claimant was born on November 17, 1979 and was 40 years old, which

is defined as a younger individual age 18-44, on the alleged disability onset

date (20 CFR 404.1563 and 416.963).

9. The claimant has a limited education (20 CFR 404.1564 and 416.964).

10. 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).

11. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform (20 CFR 404.1569,

404.1569a, 416.969, and 416.969a).

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

Security Act, from January 1, 2020, through the date of this decision (20

CFR 404.1520(g) and 416.920(g)).

(Tr. 25-43).

V. Law & Analysis

A. Standard for Disability

Social Security regulations outline a five-step process the ALJ must use to determine

whether a claimant is entitled to benefits:

1. whether the claimant is engaged in substantial gainful activity;

2. if not, whether the claimant has a severe impairment or combination of

impairments;

3. if so, whether that impairment, or combination of impairments, meets or equals

any of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1;

4. if not, whether the claimant can perform their past relevant work in light of his

RFC; and

5. if not, whether, based on the claimant’s age, education, and work experience, they

can perform other work found in the national economy.

20 C.F.R. § 404.1520(a)(4)(i)-(v)4; Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642-43 (6th

Cir. 2006). The Commissioner is obligated to produce evidence at Step Five, but the claimant

bears the ultimate burden to produce sufficient evidence to prove they are disabled and, thus,

entitled to benefits. 20 C.F.R. § 404.1512(a).

B. Standard of Review

This Court reviews the Commissioner’s final decision to determine if it is supported by

substantial evidence and whether proper legal standards were applied. 42 U.S.C. § 405(g);

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). However, the substantial

evidence standard is not a high threshold for sufficiency. Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019). “It means – and means only – ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Id. quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229 (1938). Even if a preponderance of the evidence supports the claimant’s position,

the Commissioner’s decision cannot be overturned “so long as substantial evidence also supports

the conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir.

2003).

Under this standard, the court cannot decide the facts anew, evaluate credibility, or re-

weigh the evidence. Id. at 476. And “it is not necessary that this court agree with the

Commissioner’s finding,” so long as it meets the substantial evidence standard. Rogers, 486 F.3d

at 241; see also Biestek, 880 F.3d at 783. This is so because the Commissioner enjoys a “zone of

4 The regulations governing DIB claims are found in 20 C.F.R. § 404, et seq. and the regulations

governing SSI claims are found in 20 C.F.R. § 416, et seq. Generally, these regulations are

duplicates and establish the same analytical framework. For ease of analysis, I will cite only to

the relevant regulations in 20 C.F.R. § 404, et seq. unless there is a relevant difference in the

regulations.

choice” within which to decide cases without court interference. Mullen v. Bowen, 800 F.2d 535,

545 (6th Cir. 1986).

Even if substantial evidence supported the ALJ’s decision, the court will not uphold that

decision when the Commissioner failed to apply proper legal standards, unless the legal error

was harmless. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“[A] decision

. . . will not be upheld [when] the SSA fails to follow its own regulations and that error

prejudices a claimant on the merits or deprives the claimant of a substantial right.”); Rabbers v.

Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (“Generally, . . . we review

decisions of administrative agencies for harmless error.”). Furthermore, this Court will not

uphold a decision when the Commissioner’s reasoning does “not build an accurate and logical

bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D.

Ohio 2011). Requiring an accurate and logical bridge ensures that a claimant and the reviewing

court will understand the ALJ’s reasoning, because “[i]f relevant evidence is not mentioned, the

court cannot determine if it was discounted or merely overlooked.” Shrader v. Astrue, No. 11-

13000, 2012 WL 5383120, *6 (E.D. Mich. Nov. 1, 2012); see also Bowen v. Comm’r of Soc.

Sec., 478 F.3d 742, 749 (6th Cir. 2007).

VI. Discussion

Rojas Figueroa raises three issues for this Court’s review:

1. The ALJ erred at Steps Two and Three of the Sequential Evaluation when

she failed to properly apply the criteria of Social Security Ruling 96-8p and

consider all of Plaintiff’s impairments and related limitations when forming

the RFC.

2. The ALJ erred when she improperly assessed the opinions of the treating

and examining sources and failed to support her conclusions with

substantial evidence.

3. The ALJ erred at Steps Four and Five of the Sequential Evaluation when

she found Plaintiff could perform work at the sedentary level of exertion

and failed to include the need for a cane for balance as well as ambulation.

(ECF Doc. 8, p. 1).

Rojas Figueroa’s arguments will, at times, be addressed out of order for ease of

discussion.

A. The ALJ properly considered all of Rojas Figueroa’s impairments, including

those found non-severe.

Rojas Figueroa argues that “the ALJ erroneously concluded that [her] migraine

headaches were not a severe impairment.” (ECF Doc. 8, p. 12). In response, the Commissioner

argues that the ALJ “sufficiently explained why she did not consider Plaintiff’s migraine

headaches to be a severe impairment.” (ECF Doc. 10, p. 12). According to the Commissioner,

the ALJ adequately acknowledged that Rojas Figueroa suffered from migraines and sought

treatment for the same in September 2022, but in November 2022 she felt as though her

medication was effective. (Id.). In her reply brief, Rojas Figueroa confuses this issue by arguing

that the ALJ “incorrectly failed to evaluate these headaches when forming her RFC” and further

“failed to include any restrictions related to [her] migraine headaches.” (ECF Doc. 11, p. 1, 2-3).

However, failing to include a limitation in the RFC resultant from a non-severe impairment is not

the same as failing to consider a non-severe impairment when formulating an RFC. The proper

inquiry, as stated, is whether the ALJ properly considered all impairments, both severe and non-

severe when crafting an RFC. I find that the ALJ did just that.

At Step Two, the ALJ considers the medical severity of a claimant’s impairment and

whether there is a severe medically determinable physical or mental impairment – or

combination of impairments – that meets Agency duration requirements. 20 C.F.R.

§ 404.1520(a)(4)(ii). Generally, agency regulations provide that finding no limitations or only

mild limitations result in finding a limitation to be non-severe. See 20 C.F.R. § 404.1520a(d)(1).

An impairment or combination of impairments is non-severe when it “does not significantly limit

[one’s] physical or mental ability to do basic work activities.” Id. at § 404.1522(a). So long as

the ALJ considers all of the claimant’s impairments – severe and non-severe – in the remaining

steps of the disability determination, any error at Step Two is harmless. Nejat v. Comm’r of Soc.

Sec., 359 F. App’x 574, 577 (6th Cir. 2009) citing Maziarz v. Sec'y of Health & Human Servs.,

837 F.2d 240, 244 (6th Cir. 1987).

Regarding her migraines, the ALJ found this impairment to be non-severe because

“[t]reatment notes showed that [her] headaches responded to treatment.” Specifically, while she

reported that Imitrex and Maxalt were ineffective, she reported on November 2, 2022 that “her

new migraine medication was effective.” (Tr. 26). Rojas Figueroa expressed to NP Smith that

her new migraine medicine was effective at treating her migraines. (Tr. 1701). As noted by Rojas

Figueroa, approximately a week later, she saw CNP Daimer for her migraines reporting that they

occurred over six times per month and lasted 48 to 72 hours. (Tr. 1566). However, a review of

the treatment notes from this particular encounter do not negate the statements made to NP Smith

indicating that her medication was effectively treating her migraines. Furthermore, while Rojas

Figueroa cites to evidence that she believes supports her contention that her migraines should

have been considered severe, I find this alleged failure harmless because the ALJ went on to

consider all of Rojas Figueroa’s impairments, both severe and non-severe when determining her

RFC. (Tr. 26). Accordingly, I do not recommend remand on this basis.

B. The ALJ did not err by failing to analyze Listing 11.02B.

Rojas Figueroa also argues that “[p]ursuant to Ruling 19-4p, [her] continued headaches

equaled the criteria of Listing 11.02B” and thus the ALJ erred by failing to analyze the listing.

(ECF Doc. 8, p. 14). In response, the Commissioner argues “given that the ALJ found Plaintiff’s

migraine headaches to be non-severe, there was no logical need for her to then evaluate whether

those headaches established per se disability at step three.” (ECF Doc. 10, p. 12). I agree with the

Commissioner.

In evaluating whether a claimant meets or equals a listed impairment, an ALJ must

“actually evaluate the evidence, compare it to [the relevant listed impairment], and give an

explained conclusion, in order to facilitate meaningful judicial review.” Reynolds v. Comm’r of

Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011). But the ALJ “need not discuss listings that the

[claimant] clearly does not meet, especially when the claimant does not raise the listing before

the ALJ.” Sheeks v. Comm’r of Soc. Sec. Admin., 544 F. App’x 639, 641 (6th Cir. 2013). “If,

however, the record raises a substantial question as to whether the claimant could qualify as

disabled under a listing, the ALJ should discuss that listing.” Id. at 641; see also Reynolds, 424 F.

App’x at 415-16 (holding that the ALJ erred by not conducting any Step Three evaluation of the

claimant’s physical impairments, when the ALJ found that the claimant had the severe

impairment of back pain).

“A claimant must do more than point to evidence on which the ALJ could have based his

finding to raise a ‘substantial question’ as to whether he satisfied a listing.” Smith-Johnson v.

Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir. 2014), quoting Sheeks, 544 F. App’x at

641-42. “Rather, the claimant must point to specific evidence that demonstrates he reasonably

could meet or equal every requirement of the listing.” Id., citing Sullivan v. Zebley, 493 U.S. 521,

530 (1990). “Absent such evidence, the ALJ does not commit reversible error by failing to

evaluate a listing at Step Three.” Id. at 433; see also Forrest v. Comm’r of Soc. Sec., 591 F.

App’x 359, 366 (6th Cir. 2014) (finding harmless error when a claimant could not show that he

could reasonably meet or equal a listing’s criteria).

SSR 19-4p provides guidance on how “primary headache disorders” such as migraines,

tension-type headaches, trigeminal autonomic cephalagias/cluster headaches are established and

evaluated. See SSR 19-4p, 84 Fed. Reg. 44667, 44667-71 (Aug. 26, 2019). It also offers

direction regarding a Listings analysis.

Primary headache disorder is not a listed impairment in the Listing of

Impairments (listings); however, we may find that a primary headache

disorder, alone or in combination with another impairment(s), medically

equals a listing.

Epilepsy (listing 11.02) is the most closely analogous listed impairment for

an MDI of a primary headache disorder. While uncommon, a person with a

primary headache disorder may exhibit equivalent signs and limitations to

those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures),

and we may find that his or her MDI(s) medically equals the listing.

Paragraph B of listing 11.02 requires dyscognitive seizures occurring at

least once a week for at least 3 consecutive months despite adherence to

prescribed treatment. To evaluate whether a primary headache disorder is

equal in severity and duration to the criteria in 11.02B, we consider: A

detailed description from an AMS of a typical headache event, including all

associated phenomena (for example, premonitory symptoms, aura,

duration, intensity, and accompanying symptoms); the frequency of

headache events; adherence to prescribed treatment; side effects of

treatment (for example, many medications used for treating a primary

headache disorder can produce drowsiness, confusion, or inattention); and

limitations in functioning that may be associated with the primary headache

disorder or effects of its treatment, such as interference with activity during

the day (for example, the need for a darkened and quiet room, having to lie

down without moving, a sleep disturbance that affects daytime activities, or

other related needs and limitations).

SSR 19-4p, 84 Fed. Reg. 44667, 44670-71.

Here, Rojas Figueroa argues that her migraines were per se disabling because they met

listing 11.02B, as applied to her migraines through SSR 19-4p, and that the ALJ failed analyze it.

(ECF Doc. 8, p. 12, 14). However, “[t]he Sixth Circuit has emphasized that the claimant has the

burden of showing that [their] impairments . . . meet or are equivalent to a listed impairment.”

McGeever v. Commissioner of Social Security, No. 1:18-cv-0477, 2019 WL 1428208, *7 (N.D.

Ohio Mar. 29, 2019). “Where the claimant does not mention the particular Listing at the hearing

before the ALJ, the Sixth Circuit has found that the ALJ is not obligated to discuss that particular

Listing.” Id.

I previously found no error in the ALJ’s determination that Rojas Figueroa’s migraines

were a non-severe impairment, I therefore find no error in the ALJ not finding them disabling or

for failing to discuss a Listing for that non-severe impairment and accordingly do not

recommend remand on this basis.

C. The ALJ properly considered Rojas Figueroa’s subjective symptoms

regarding her obesity, pain, and psychological symptoms.

Contained within Rojas Figueroa’s first issue are a few rogue statements regarding her

subjective symptoms; specifically, regarding obesity, pain, and psychological symptoms. While

unartfully argued, it appears she takes issue with the ALJ “opin[ing] that [her] statements were

not entirely consistent with the evidence” and as a result “discounted the combination of [her]

obesity and how it affected the rem[a]inder of her impairments.” (ECF Doc. 8, pp. 14-15). The

Commissioner argues that the ALJ adequately considered Rojas Figueroa’s obesity; the ALJ

specifically “‘considered the claimant’s body habitus’” in conjunction with other impairments in

support of her determination. (ECF Doc.10, p. 15, quoting Tr. 35).

When assessing a claimant’s subjective statements, “‘the ALJ must [first] determine

whether a claimant has a medically determinable physical or mental impairment that can

reasonably be expected to produce the symptoms alleged.’” Grames v. Comm’r of Soc. Sec., 815

Fed. App’x 820, 825 (6th Cir. 2019) quoting Calvin v. Comm’r of Soc. Sec., 437 F. App’x 370,

371 (6th Cir. 2011); SSR 16-3p, 2017 WL 5180304, *3 (Oct. 25, 2017). Next, the ALJ must

consider the objective medical evidence and the claimant’s reported daily activities, as well as

several other factors, to evaluate the intensity, persistence, and functional limitations of the

claimant's symptoms. See Curler v. Comm’r of Soc. Sec., 561 F. App’x 464, 474 (6th Cir. 2014);

20 C.F.R. § 404.1529(c)(1)-(3); SSR 16-3p, 2017 WL 5180304, *4, *7-8 (Oct. 25, 2017). The

ALJ must determine whether there is objective medical evidence from an acceptable medical

source showing that the claimant has a medical impairment that could reasonably be expected to

produce the alleged pain. If there is, the ALJ considers all the evidence to determine the extent to

which the pain affects the claimant’s ability to work. Heart v. Comm’r of Soc. Sec., No. 22-3282,

2022 WL 19334605, *3 (6th Cir. Dec. 8, 2022), citing 20 C.F.R. § 416.929 (a)-(c). The review in

this case must be deferential. A reviewing court “must affirm the ALJ’s decision as long as it is

supported by substantial evidence and is in accordance with applicable law.” Showalter v.

Kijakazi, No. 22-5718, 2023 WL 2523304, *2 (6th Cir., Mar. 15, 2023). Rojas Figueroa’s

argument does not overcome this deferential standard of review.

In her decision, the ALJ found Rojas Figueroa’s statements regarding intensity,

persistence, and limiting effects of her symptoms not entirely consistent with the medical

evidence. (Tr. 32). Regarding pain, fatigue, and lack of concentration, the ALJ noted that Rojas

Figueroa was consistently marked as “alert” throughout the medical record. (Tr. 32). Further,

while she reported pain in her right shoulder, following her right shoulder arthroscopy and biceps

tenotomy, her medical records indicated slow but steady progress. (Tr. 33). Following an MRI

due to continued reports of pain, she was recommended conservative treatment. (Id.). The ALJ

also noted that Rojas Figueroa complained of knee pain both before and after an arthroscopy and

debridement of the right knee. (Tr. 33-34). However, notes also indicated that she gained relief

from the procedure, and also from medication, and injections. (Id.).

Regarding obesity, the ALJ noted an inconsistency between Rojas Figueroa’s “problems

with sitting, standing, and walking” and at least five medical records from April 2021 through

February 2023 noting her “normal gait.” (Tr. 32). Notwithstanding this inconsistency, the ALJ

stated “[b]ecause of the claimant’s body habitus and some notes showing antalgic gait, the [ALJ]

found sedentary work more appropriate.” (Tr. 32-33).

Turning to mental health, the ALJ noted that Rojas Figueroa underwent few changes

during her treatment. (Tr. 35). However, despite reports regarding her depressed mood,

constricted affect, and poor appearance, she was also noted to be alert, made good eye contact,

was cooperative and had appropriate demeanor. (Tr. 35-36). Further, she was continued on her

mental health prescriptions. (Id.).

The ALJ considered Rojas Figueroa’s statements regarding her pain, obesity, and mental

health symptoms. In doing so, the ALJ found those statements not entirely consistent with the

record and cited to evidence that both supported and negated Rojas Figueroa’s statements. The

analysis provided by the ALJ created a logical and accurate bridge from the evidence to the RFC,

allowing the plaintiff and reviewing court to understand her reasoning. Accordingly, I decline to

recommend remand on this basis.

D. The RFC is supported by substantial evidence.

Rojas Figueroa argues that the ALJ’s decision is not supported by substantial evidence

because the RFC failed “to include the need for a cane for both standing and walking” as it “was

needed for balance, weakness, and pain.” (ECF Doc. 8, p. 17, 24). In response, the

Commissioner argues that the ALJ “did not ignore or overlook Plaintiff’s alleged need for a cane

for balancing” rather she discussed the medical evidence and hearing testimony and “simply

weighed the evidence in a manner in which Plaintiff disagrees.” (ECF Doc. 10, 20-21). I agree

with the Commissioner.

Before proceeding to Step Four of the sequential analysis, the ALJ determines a

claimant’s RFC by considering all relevant medical and other evidence. 20 C.F.R. § 404.1520(e).

The RFC is an assessment of a claimant’s ability to work despite his impairments. Walton v.

Astrue, 773 F. Supp. 2d 742, 747 (N.D. Ohio 2011) citing 20 C.F.R. § 404.1545(a)(1) and SSR

96-8p. “In assessing RFC, the [ALJ] must consider limitations and restrictions imposed by all of

an individual’s impairments, even those that are not ‘severe.’” SSR 96-8p, 61 Fed. Reg. 34474,

34475 (1996). Relevant evidence includes a claimant’s medical history, medical signs, laboratory

findings, and statements about how the symptoms affect the claimant. 20 C.F.R. § 404.1529(a);