Forsch v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Penny Forsch, Case No. 5:24cv1365

Plaintiff,

-vs- JUDGE PAMELA A. BARKER

Magistrate Judge Darrell A. Clay

Frank Bisignano,

Commissioner of Social

Security MEMORANDUM OPINION AND

ORDER

Defendants.

This matter is before the Court on the Objection of Defendant Commissioner of the Social

Security Administration (“Defendant” or “Commissioner”) to the Report and Recommendation of

Magistrate Judge Darrell A. Clay regarding Plaintiff Penny Forsch's (“Plaintiff” or “Forsch”) request

for judicial review of the Commissioner’s denial of her application for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act. (Doc. No. 15.) For the following reasons, the

Commissioner's Objection is granted, the Report & Recommendation (“R&R”) is rejected, and the

Commissioner's decision is affirmed.

I. Background

In October 2021, Forsch filed her application for DIB, alleging a disability onset date of

February 16, 2020. (Doc. No. 8 (Transcript [“Tr.”] ) at 18. ) The application was denied initially and

upon reconsideration, and Forsch requested a hearing before an administrative law judge (“ALJ”).

(Id.) On May 30, 2023, the ALJ conducted a telephone hearing at which Forsch was represented by

counsel and testified. (Tr. 33-64.) A vocational expert (“VE”) also testified. (Id.)

On June 13, 2023, the ALJ found that Forsch was not disabled. (Tr. 18-27.) The ALJ

determined that Forsch suffered from the severe impairments of inflammatory bowel syndrome

(“IBS”), gastritis, hiatal hernia, acid reflux, and diverticulosis of the large intestine. (Tr. 21.) The

ALJ also determined that Forsch’s depression and anxiety were non-severe because they caused no

more than “mild” limitations in her mental functioning. (Tr. 21-23.)

The ALJ then found that Forsch’s impairments did not meet or medically equal the

requirements of a listed impairment and that she retained the residual functional capacity (“RFC”) to

perform light work with the limitations that she could never climb ladders, ropes, and scaffolds;

occasionally climb ramps and stairs; frequently stoop, kneel, crouch, and crawl; tolerate no more than

occasional exposure to extreme cold, extreme heat, humidity, and pulmonary irritants; and tolerate

no exposure to hazards such as unprotected heights. (Tr. 23-26.) The ALJ concluded that Forsch

could perform her past relevant work as a retail store manager and, therefore, was not disabled. (Tr.

26.) The Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the

Commissioner's final decision. (Tr. 1-4.)

Plaintiff seeks judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. No. 1.)

The case was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(1)

for a Report and Recommendation (“R&R”). In the R&R, the Magistrate Judge concludes that the

ALJ’s decision is not supported by substantial evidence because it was not clear from the decision

that the ALJ had considered Forsch’s mental limitations in the RFC at Step Four of the sequential

evaluation process. (Doc. No. 14 at PageID# 592.) The Magistrate Judge therefore recommends that

the decision be reversed and remanded “so that the ALJ may properly consider the effect of Ms.

Forsch’s severe and non-severe impairments in the RFC.” (Id. at PageID# 594.)

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On June 11, 2025, the Commissioner filed an Objection to the R&R. (Doc. No. 15.) Forsch

did not file a response. The Court has conducted a de novo review of the Commissioner’s Objection.

II. Standards of Review

A. Review of Objections to R&R

Under 28 U.S.C. § 636(b)(1), “[a] judge of the court shall make a de novo determination of

those portions of the report or specified proposed findings or recommendations to which objection is

made.” 28 U.S.C. § 636(b)(1); see Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926

at *1 (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is

dispositive of a claim or defense of a party shall be subject to de novo review by the district court in

light of specific objections filed by any party.”) (citations omitted); Orr v. Kelly, 2015 WL 5316216

at *2 (N.D. Ohio Sept. 11, 2015) (citing Powell, 1994 WL 532926 at *1). See also Fed. R. Civ. P.

72(b)(3). “A judge of the court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. §636(b)(1).

The Sixth Circuit has held that general objections to a Magistrate Judge’s report and

recommendation are insufficient. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). See also Brown

v. City of Grand Rapids, Michigan, 2017 WL 4712064 (6th Cir. 2017). “A general objection, or one

that merely restates the arguments previously presented, is not sufficient to alert the court to alleged

errors on the part of the magistrate judge.” Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich.

2004). Rather, “[t]he objections must be clear enough to enable the district court to discern those

issues that are dispositive and contentious.” Miller, 50 F.3d at 380 (citing Howard v. Sec’y of Health

& Human Servs., 932 F.2d 505, 508–09 (6th Cir.1991)). “‘[B]are disagreement with the conclusions

reached by the Magistrate Judge, without any effort to identify any specific errors in the Magistrate

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Judge's analysis that, if corrected, might warrant a different outcome, is tantamount to an outright

failure to lodge objections to the R&R.’” Arroyo v. Comm'r of Soc. Sec., 2016 WL 424939 at *3 (E.D.

Mich. Feb. 4, 2016) (quoting Depweg v. Comm'r of Soc. Sec., 2015 WL 5014361 at *1 (E.D. Mich.

Aug. 24, 2015)) (citing Howard, 932 F.2d at 509).

Moreover, parties cannot “raise at the district court stage new arguments or issues that were

not presented” before the magistrate judge's final report and recommendation. See Murr v. United

States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (“Courts have held that while the Magistrate Judge Act,

28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed,

absent compelling reasons, it does not allow parties to raise at the district court stage new arguments

or issues that were not presented to the magistrate.”). See also Swain v. Comm'r of Soc. Sec., 379

Fed. Appx 512, 517-18 (6th Cir. 2010) (“A claim raised for the first time in objections to a magistrate

judge’s report is deemed waived.”); Nasser v. Comm’r of Soc. Sec., 598 F.Supp.3d 614, 621 (E.D.

Mich. 2022), aff’d, 2022 WL 17348838 (6th Cir. Dec. 1, 2022).

B. Review of Social Security Decisions

Under the Social Security Act, a disability renders the claimant unable to engage in substantial

gainful activity because of a medically determinable physical or mental impairment that can result in

death or that can last at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).

The impairment must prevent the claimant from doing the claimant's previous work, as well as any

other work which exists in significant numbers in the region where the individual lives or in several

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regions of the country. 42 U.S.C. § 423(d)(2)(A). Consideration of disability claims follows a five-

step review process.1 20 C.F.R. § 404.1520.

The Court's review of the Commissioner's decision to deny benefits is limited to determining

whether the ALJ applied the correct legal standards and whether the findings are supported by

substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is ‘more than a scintilla of evidence

but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” McGlothin v. Comm'r of Soc. Sec., 299 Fed. Appx. 516, 521 (6th

Cir. 2008) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal citation

omitted)).

If substantial evidence supports the Commissioner's finding that the claimant is not disabled,

that finding must be affirmed even if the reviewing court would decide the matter differently. Cutlip

v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citation omitted). A reviewing

court is not permitted to resolve conflicts in evidence or to decide questions of credibility. Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (citation omitted). Moreover, the Commissioner's

1 Under this five step review, the claimant must first demonstrate that she is not currently engaged in “substantial gainful

activity” at the time of the disability application. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant must

show that she suffers from a “severe impairment” in order to warrant a finding of disability. 20 C.F.R. §§ 404.1520(c)

and 416.920(c). A “severe impairment” is one that “significantly limits . . . physical or mental ability to do basic work

activities.” Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). Third, if the claimant is not performing substantial

gainful activity, has a severe impairment that is expected to last for at least twelve months, and the impairment, or

combination of impairments, meets or medically equals a required listing under 20 CFR Part 404, Subpart P, Appendix

1, the claimant is presumed to be disabled regardless of age, education or work experience. See 20 C.F.R. §§ 404.1520(d)

and 416.920(d). Before considering step four, the ALJ must determine the claimant’s residual functional capacity; i.e.,

the claimant’s ability to do physical and mental work activities on a sustained basis despite limitations from her

impairments. 20 C.F.R. § 404.1520(e) and 416.930(e). At the fourth step, if the claimant’s impairment or combination

of impairments does not prevent her from doing her past relevant work, the claimant is not disabled. 20 C.F.R. §§

404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does prevent her from

doing her past relevant work, if other work exists in the national economy that the claimant can perform, the claimant is

not disabled. 20 C.F.R. §§ 404.1520(g), 404.1560(c), and 416.920(g). See Abbot, 905 F.2d at 923.

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decision must be affirmed even if substantial evidence also exists in the record to support a finding

of disability. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d

535, 545 (6th Cir. 1986)).

III. The Commissioner’s Objection to the R&R

In his sole Objection, the Commissioner challenges the Magistrate Judge’s conclusion that

the ALJ did not sufficiently articulate how he accounted for Forsch’s non-severe mental impairments

in the RFC or provide sufficient context to demonstrate that he considered them at Step Four. (Doc.

No. 15.) To properly evaluate the Commissioner’s Objection, a close reading of the ALJ decision is

required.

At the beginning of the decision, the ALJ explained the five step sequential evaluation process

for determining whether an individual is disabled under social security regulations. (Tr. 19-20.)

Notably, after explaining the first three steps, the ALJ stated as follows:

Before considering step four of the sequential evaluation process, I must first

determine the claimant’s residual functional capacity (20 CFR 404.1520(e)). An

individual’s residual functional capacity is her ability to do physical and mental work

activities on a sustained basis despite limitations from her impairments. In making

this finding, I must consider all of the claimant’s impairments, including

impairments that are not severe (20 CFR 404.1520(e) and 404.1545; SSR 96-8p).

(Tr. 19-20) (emphasis added).

The ALJ then proceeded to apply the five step sequential evaluation process to Forsch. At

Step Two, the ALJ determined that Forsch had several severe physical impairments but found that

her mental impairments (i.e., depression and anxiety) were non-severe. (Tr. 21-23.) In so finding,

the ALJ discussed the medical records regarding Forsch’s mental impairments, noting that she was

diagnosed with depression and anxiety by her primary care provider in 2010 and prescribed Paxil.

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(Tr. 21.) The ALJ further noted that “primary care records from June 2020 indicate Paxil was working

very well for [Forsch’s] depression and anxiety.” (Id.)

The ALJ also discussed the opinion evidence regarding Forsch’s mental impairments at Step

Two. (Tr. 21-22.) The ALJ first noted that Forsch underwent a psychological consultative exam

with Carolyn Arnold, Psy.D., in February 2022. (Tr. 21.) See Tr. 388-392. The ALJ discussed Dr.

Arnold’s Mental Disability Evaluation report, as follows:

[Forsch] had a psychological consultative evaluation in February 2022 and indicated

she was diagnosed with [depression and anxiety] by her primary care provider in 2010.

She stated she stays in contact with her four siblings and her three children. She

completed one year of college. Her mental status exam notes she appeared well-

groomed with good hygiene and dressed in clothing appropriate for weather. She was

cooperative, mood was described a[s] down, low, and restless, affect was congruent

with stated mood, thought content was normal, and speech was normal. She was

oriented x4, with no difficulty following conversation, abstract thinking was intact,

and insight and judgment were within normal limits. She stated she performs self-care

activities, is able to do light household chores, and can go shopping and handle

finances. She does spend time with other people, specifically her partner, family, and

friends, and she sometimes goes to social locations like family homes, although she

does sometimes feel isolated and lonely and does tend to self- isolate (8F).

The consultative examiner [Dr. Arnold] indicated that the claimant can

understand, remember and carry out instructions, follow a conversation and can

think abstractly and apply reason when asked to interpret proverbs. The

claimant's short-term memory was intact as evidenced by accurate recall of three of

three words and six of six digits forward immediately. Long term memory was

somewhat intact as evidenced by the recall of one of the three words after a few

minutes and the recall of a personal memory. Mental flexibility was intact as

evidenced by the recall of six of six numbers on Digit Span backward, spelling "world"

correctly both backward and forward and exhibiting a relatively strong fund of

knowledge. The claimant was able to sustain concentration and show persistence

with simple tasks for a moderate period of time and multistep tasks for a

moderate period of time. The claimant was not especially distractible nor

fatigued as evidenced by the performance on the Serial 7s task. The claimant has

limited social interactions, mostly with family and a few friends. The claimant

reported less difficulty with social interactions in the past, but always feeling more

comfortable by herself, a history of interacting well with co- workers and supervisors

and responding adequately to workplace pressures by figuring out solutions to

problems and getting through the day. She was an assistant store manager. The

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claimant has adapted to limitations by remaining at home, adjusting activities and self-

isolating to some extent. The reported plan for the future is to resolve her stomach

issues and go back to work (8F). These findings are persuasive as they are

consistent with the claimant’s treatment history and activities of daily living, and

they are supported by a thorough evaluation of the claimant, which showed no

more than mild work-related limitations.

(Tr. 21-22) (emphasis added).

The ALJ then considered the findings of state agency psychological consultants, Audrey

Todd, Ph.D. (Tr. 69) and Courtney Zeune, Psy.D. (Tr. 78-79.) 2 The ALJ found the opinions of Dr.

Todd and Ms. Zeune to be persuasive, explaining as follows:

Consistent with [Dr. Arnold’s] findings, the DDS psychological consultants found

only mild limitations with interaction and adaptation, finding no severe mental

impairment. This opinion is persuasive, as it is consistent with the objective medical

records, which show no mental health treatment other than a prescription for Paxil

from her primary care provider, and it is supported by the psychological consultative

evaluation, which showed that the claimant has no issues with concentration, and

intellectual functioning is within normal limits. Further, the claimant can attend to her

own personal care in a timely manner, can perform light household chores, can grocery

shop, and socializes with her partner, family, and a few friends. She reports that she

does isolate sometimes, but she also reports she goes to social locations. She was able

to sustain concentration and show persistence for up to an hour or more while reading,

watching TV, and talking with her partner (8F; 5E).

(Tr. 22.)

Based on the above, the ALJ found, at Step Two, that Forsch’s medically determinable mental

impairments of depression and anxiety, considered singly and in combination, did not cause more

than minimal limitation in her ability to perform basic mental work activities and were, therefore,

2 Both Dr. Todd and Ms. Zeune found that Forsch had (1) no limitations in understanding, remembering, or applying

information; (2) no limitations in concentrating, persisting, or maintaining pace; (3) mild limitations in interacting with

others; and (4) mild limitations in adapting herself. (Tr. 69, 78.) Dr. Todd and Ms. Zeune concluded that Forsch’s

depression and anxiety were “considered mild and not severe.” (Id.)

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non-severe.3 (Tr. 22.) Specifically, the ALJ considered the four broad functional areas of mental

functioning set out in the disability regulations (known as the “paragraph B” criteria) and found that

Forsch had: (1) no limitations in understanding, remembering, or applying information; (2) no

limitations in concentrating, persistence, or maintaining pace; (3) mild limitations in interacting with

others; and (4) mild limitations in her ability to adapt or manage herself. (Tr. 22-23.) After explaining

his reasoning for these findings, the ALJ stated as follows:

The limitations identified in the “paragraph B” criteria are not a residual functional

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

and 3 of the sequential evaluation process. The mental residual functional capacity

assessment used at steps 4 and 5 of the sequential evaluation process requires a more

detailed assessment. The following residual functional capacity assessment reflects

the degree of limitation I have found in the “paragraph B” mental function

analysis.

(Tr. 23) (emphasis added). At Step Three, the ALJ proceeded to find that Forsch did not have an

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

listed impairments in 20 C.F.R. Part 404. (Id.)

At Step Four, the ALJ found that: “After careful consideration of the entire record, I find

that the claimant has the residual functional capacity to perform light work as defined in 20 CFR

404.1567(b) except [she can] [n]ever climb ladders, ropes and scaffolds, occasionally climb ramps

and stairs, frequently stoop, kneel, crouch and crawl; [n]o more than occasional exposure to extreme

cold, extreme heat, humidity, and pulmonary irritants such as fumes, odors, dusts, gases and poor

ventilation, and avoid all exposure to hazards such as unprotected heights.” (Tr. 23-24) (emphasis

added). Notably, the ALJ began his Step Four analysis by stating as follows:

3 Forsch did not challenge the ALJ’s determination of non-severity in her Brief on the Merits before the Magistrate Judge.

(Doc. No. 10.)

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In making this finding, I have considered all symptoms and the extent to which

these symptoms can reasonably be accepted as consistent with the objective

medical evidence and other evidence, based on the requirements of 20 CFR

404.1529 and SSR 16-3p. I also considered the medical opinion(s) and prior

administrative medical finding(s) in accordance with the requirements of 20 CFR

404.1520c.

(Tr. 24) (emphasis added). The ALJ first discussed Forsch’s subjective complaints, noting (among

other things) that she alleged disability due to depression, anxiety, and “social functioning.” (Tr. 24.)

The ALJ then discussed the medical evidence regarding Forsch’s physical impairments, including

her treatment for abdominal pain, constipation, gastritis, hernia, and IBS.4 (Tr. 24-25.)

The ALJ then evaluated the medical opinion evidence. (Tr. 26.) The ALJ stated that “I have

fully considered the medical opinions and prior administrative findings as follows,” and proceeded

to discuss the opinions of state agency physicians Steve McKee, M.D (Tr. 70-71) and Venkatachala

Sreenivas, M.D. (Tr. 79-80.) The ALJ did not separately discuss, at Step Four, the state agency

psychological opinions of Dr. Todd and/or Ms. Zeune. At the conclusion of his RFC analysis, the

ALJ stated: “Based on the foregoing, I find the claimant has the above residual functional capacity

assessment, which is supported by the medical evidence of record, medical source opinions, and the

claimant’s activities of daily living.” (Tr. 26.)

At Step Five, the ALJ found that Forsch is capable of performing her past relevant work as a

retail store manager. (Id.) Specifically, the ALJ explained that “[i]n comparing the claimant’s

residual functional capacity with the physical and mental demands of this work, I find that the

claimant is able to perform it as actually and generally performed.” (Id.) (emphasis added). Thus,

the ALJ found that Forsch was not disabled. (Tr. 26-27.)

4 Though the ALJ focused on Forsch’s physical impairments, the ALJ noted that, during a gynecological examination in

September 2022, Forsch “reported Paxil was helping with post-menopausal symptoms, including insomnia.” (Tr. 25.)

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In the R&R, the Magistrate Judge found that the ALJ had not sufficiently considered Forsch’s

mental limitations in the RFC at Step Four “despite the ALJ’s statement at Step Two that the RFC

reflects the findings of mild mental limitations there.” (Doc. No. 14 at PageID# 592.) Relying on

Napier v. Comm’r of Soc. Sec., 127 F.4th 1000 (6th Cir. 2025), the Magistrate Judge found that “the

context surrounding the ALJ’s analysis [at Step Four] does not indicate that the ALJ considered the

mental limitations” because the ALJ (1) did not expressly mention that he considered non-severe

impairments when he said that he “considered all symptoms,” (2) “discussed only Ms. Forsch’s

physical symptoms at Step Four” and “made no mention of any mental symptoms;” and (3) did not

discuss any “mental findings” in his analysis of the state agency medical opinions at Step Four. (Id.

at PageID#s 592-594.) Thus, the Magistrate Judge found that the Court could not determine whether

the ALJ “discounted or merely overlooked” the evidence regarding Forsch’s non-severe mental

impairments, necessitating a remand. (Id. at PageID# 594.)

The Commissioner objects to the Magistrate Judge’s conclusion. (Doc. No. 15.) The

Commissioner first notes that the ALJ did, in fact, observe that Forsch alleged disability due to

depression and anxiety at the beginning of his Step Four analysis. (Id. at PageID# 598) (citing Tr.

24.) The Commissioner then argues that, although the ALJ did not discuss Dr. Todd’s or Ms. Zeune’s

findings at Step Four, the ALJ discussed them at length at Step Two (along with Dr. Arnold’s opinion)

and found them to be persuasive. (Id.) Citing numerous cases, the Commissioner argues that there

is no requirement that the ALJ repeat his analysis of Dr. Todd’s and Ms. Zeune’s opinions at Step

Four and that this Court may (and should) evaluate the ALJ decision as whole. (Id. at PageID# 599.)

The Commissioner asserts that “the path of the ALJ’s reasoning regarding how the ALJ evaluated

Plaintiff’s mental impairments and determined they warranted no inclusion of specific, mental RFC

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limitations [is] readily traced.” (Id. at PageID#s 600-601.) Forsch did not file a Response to the

Commissioner’s Objection.

For the following reasons, the Court agrees with the Commissioner. When determining the

RFC, the ALJ must “consider limitations and restrictions imposed by all of an individual's

impairments, even those that are not ‘severe.’” Social Security Ruling (“SSR”) 96-8p, 1996 WL

374184 at *5 (SSA July 2, 1996). See also 20 C.F.R. §§ 404.1545(a)(2), (e) (noting that the

Commissioner will consider all of a claimant's medically determinable impairments, even if they are

not severe); Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 851 (6th Cir. 2020). SSR 96-8p further

explains that “[w]hile 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.” SSR 96-8p, 1996 WL

374184 at * 5.

The Sixth Circuit has explained the requirements of SSR 96-8p and 20 CFR 404.1545 in

several published opinions. In Emard, supra, the claimant argued that the ALJ improperly excluded

his non-severe impairments from consideration when assessing the RFC. Emard, 953 F.3d at 851.

The district court rejected this argument and affirmed the Commissioner’s denial of disability

benefits. Id. at 846. On appeal, the Sixth Circuit affirmed, explaining (in relevant part) as follows:

Although the ALJ did not specifically discuss the combined effect of Emard’s

impairments or mention Emard’s non-severe 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

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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 non-severe

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.

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.

Id. at 851-852 (emphasis added).

The Sixth Circuit recently revisited this issue in Napier v. Comm’r of Soc. Sec., 127 F.4th

1000, 1007 (6th Cir. 2025). In that case, the ALJ found that three of Napier’s physical conditions

qualified as severe impairments, but that her mental impairments (anxiety and depression) did not

qualify as severe. Id. at 1003. At Step Two, the ALJ considered the degree to which Napier’s mental

impairments limited her ability to function in the four broad functional areas, i.e., (1) understanding,

remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or

maintaining pace; and (4) adapting or managing oneself. Id. at 1003-1004. The ALJ found that

Napier had “no limitations” in interacting with others and “no more than mild limitations” with

respect to the other three broad functional areas. Id. at 1004. As part of this determination, the ALJ

considered the opinions of several psychologists who had examined Napier. Id. Before turning to

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Step Three, the ALJ noted that the RFC assessment laid out later in Step Four of his decision

“reflect[ed] the degree of limitation” that the ALJ “ha[d] found in the ... mental function analysis.”

Id. At Step Four, the ALJ concluded that Napier retained the RFC to perform her past relevant work

as a cashier. Id. He accordingly found that Napier was not disabled. Id. The ALJ noted that in

arriving at this determination, he had “considered all symptoms.” Id.

Napier challenged the ALJ’s decision, arguing that the ALJ had failed to explain how her non-

severe mental impairments “played into his [RFC] analysis.” Id. The district court affirmed the

ALJ’s decision, and Napier appealed. Id. The Sixth Circuit affirmed, as follows:

The record clearly demonstrates that the ALJ adequately accounted for Napier's

mental impairments in formulating her residual functional capacity. In explaining the

required five-step process for addressing Napier's application, the ALJ noted that in

determining Napier's residual functional capacity, he was required to “consider

all of the claimant's impairments, including impairments that are not severe.”

After concluding that Napier's mental impairments were no more than mild, the ALJ

explicitly stated that his “residual functional capacity assessment used at steps 4

and 5” later in his decision reflected the “degree of limitation” that the ALJ had

found in the “mental function analysis.” And the ALJ later noted that in concluding

that Napier had the “residual functional capacity to perform light work,” he had

“considered all symptoms.” We have previously reasoned that, depending on the

context, similar statements can be sufficient to demonstrate that the ALJ adequately

considered all of a claimant's medical impairments in formulating a residual functional

capacity analysis. See Emard v. Comm'r of Soc. Sec., 953 F.3d 844, 851 (6th Cir.

2020). Though there may be occasions where, in context, similar statements would

be insufficient, this is not such a case. Considering the substantial evidence supporting

the ALJ's findings that Napier's limitations were no more than mild and the ALJ's

repeated statements that it took all of Napier's limitations into account, we hold that

the ALJ adequately accounted for Napier's limitations in the residual functional

capacity analysis.

Id. at 1007 (internal citations to the record omitted).

District courts interpreting Emard and Napier have found that, even where an ALJ does not

explicitly reference a plaintiff's non-severe impairments at the RFC assessment stage, an ALJ's

analysis may still satisfy SSR 96-8p if the ALJ: (1) refers to SSR 96-8p in the decision; (2) discusses

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how the claimant’s non-severe impairments functionally limit the claimant (if at all) at Step Two; and

(3) provides a subsequent assurance that all symptoms and the entire record were considered when

assessing an RFC. See, e.g., Johnson v. Comm’r of Soc. Sec., 2025 WL 1765444 at * 3 (N.D. Ohio

June 26, 2025); Angela K. P. v. Comm’r of Soc. Sec., 2025 WL 1564283 at * 3 (S.D. Ohio June 3,

2025), report and recommendation adopted by 2025 WL 1827881 (S.D. Ohio July 2, 2025);

Harrington v. Saul, 2021 WL 3174273 at *10 (N.D. Ohio July 9, 2021), report and recommendation

adopted by, 2021 WL 3165836 (N.D. Ohio July 26, 2021); Farell v. O'Malley, 2024 WL 1259255 at

*8 (E.D. Ky. Mar. 25, 2024).

In the instant case, the Court finds that the ALJ included each of these components in his

decision. First, as in Emard and Napier, the ALJ explicitly referenced SSR 96-8p as controlling his

RFC finding, stating that he “must consider all of the claimant’s impairments, including impairments

that are not severe (20 CFR 404.1520(e) and 404.1545; SSR 96-8p).” (Tr. 20.) See Emard, 953 F.3d

at 851; Napier, 127 F.4th at 1007. Next, the ALJ thoroughly discussed the “paragraph B” functional

limitations (or lack thereof) imposed by Forsch’s non-severe mental impairments at Step Two of his

analysis, as follows:

In understanding, remembering, or applying information, the claimant has no

limitations. The claimant did not allege any particular issues in this area. However,

the claimant also stated that she could perform simple maintenance, prepare meals,

pay bills, go to doctor's appointments, take medications, drive, shop, and read. In

addition, the record shows that the claimant was able to provide information about her

health, describe her prior work history, follow instructions from healthcare providers,

respond to questions from medical providers, and there is [not] any mention of any

issues with the claimant's short- or long-term memory (8F; 5E; testimony).

In interacting with others, the claimant has mild limitations. Here, the claimant alleged

that she has difficulty engaging in social activities. However, according to her

statements, the claimant is also able to get along with others, shop, spend time with

friends and family, and deal appropriately with authority. Finally, the medical

evidence shows that the claimant had a good rapport with providers, was described as

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pleasant and cooperative, and had good interactions with non-medical staff (8F; 5E;

testimony).

The next functional area addresses the claimant's ability to concentrate, persist, or

maintain pace. For this criterion, the claimant has no limitations. The claimant

contended that she has limitations in completing tasks. On the other hand, the claimant

said that she is also able to prepare meals, watch TV, read, drive, manage funds, and

handle her own medical care. Additionally, the record fails to show any mention of

distractibility (8F; 5E; testimony).

Finally, the claimant has mild limitations in her ability to adapt or manage herself. The

claimant did not allege any symptoms or limitations that relate to this criterion.

Furthermore, the claimant also stated that she is able to handle self-care and personal

hygiene and care for pets. Meanwhile, the objective evidence in the record showed the

claimant to have appropriate grooming and hygiene, no problem getting along well

with providers and staff, normal mood and affect, and no problems with temper control

(8F; 5E; testimony).

(Tr. 22-23.) See Emard, 953 F.3d at 852; Napier, 127 F.4th at 1003-1004, 1007. The ALJ discussed

the opinions of consultative examiner Dr. Arnold, and state agency psychologists Dr. Todd and Ms.

Zeune, finding them to be persuasive. (Tr. 21-22.) At the conclusion of his Step Two analysis, the

ALJ expressly states that “[t]he following residual functional capacity assessment reflects the degree

of limitation I have found in the ‘paragraph B’ mental function analysis.” (Tr. 23.) See Napier, 127

F.4th at 1004. Finally, the ALJ expressly states that his RFC determination at Step Four was based

on “careful consideration of the entire record” and that he “considered all symptoms.” (Tr. 23, 24.)

See Emard, 953 F.3d at 851; Napier, 127 F. 4th at 1007.

In light of the above, the Court finds that the ALJ complied with the requirements set forth in

Emard and Napier, thereby providing a sufficient basis to conclude that he properly considered

Forsch's mild mental limitations in assessing the RFC. The Court respectfully disagrees with the

Magistrate Judge’s conclusion to the contrary for all the reasons set forth above. The Commissioner’s

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Objection (Doc. No. 15) is, therefore, granted and the R&R (Doc. No. 14) is rejected. The

Commissioner’s decision is hereby affirmed.

IV. Conclusion

For all of the foregoing reasons, the Commissioner’s Objection (Doc. No. 15) is granted. The

Court rejects the Magistrate Judge’s Report and Recommendation (Doc. No. 14), and the

Commissioner’s decision is affirmed.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: August 11, 2025 U. S. DISTRICT JUDGE

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