United States District Court, S.D. Ohio, Eastern Division
Richard E. Stewart II, Plaintiff,
Commissioner of Social Security, Defendant.
OPINION AND ORDER
L. Graham United States District Judge
Richard E. Stewart II brings this action under 42 U.S.C.
§§405(g) for review of a final decision of the
Commissioner of Social Security (“Commissioner”)
denying his applications for disability insurance benefits
and supplemental security income. In a decision dated May 19,
2016, the administrative law judge (“ALJ”) found
that plaintiff had severe impairments consisting of
osteoarthritis and allied disorders, degenerative disc
disease of the cervical spine, status post right rotator cuff
repair, right-sided carpal tunnel syndrome and other
arthraligias. PAGEID 86. After considering the entire record,
the ALJ found that plaintiff's residual functional
capacity (“RFC”) would permit him to perform work
with specified physical restrictions. After considering the
testimony of a vocational expert, the ALJ decided that there
were sedentary jobs which plaintiff could perform, taking
plaintiff's additional physical restrictions into
account, and that plaintiff was not disabled. PAGEID 96-97.
This matter is before the court for consideration of
plaintiff's April 6, 2018, objections to the March 23,
2018, report and recommendation of the magistrate judge
recommending that the decision of the Commissioner be
Standard of Review
party objects within the allotted time to a report and
recommendation, 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
also Fed. R. Civ. P. 72(b). Upon review, 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).
court's review “is limited to determining whether
the Commissioner's decision ‘is supported by
substantial evidence and was made pursuant to proper legal
standards.'” Ealy v. Comm'r of Soc.
Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007)); see also, 42 U.S.C. § 405(g)
(“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall
be conclusive.”). Put another way, a decision supported
by substantial evidence is not subject to reversal, even if
the reviewing court might arrive at a different conclusion.
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
Even if supported by substantial evidence, however,
“‘a decision of the Commissioner will not be
upheld where the [Commissioner] fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial
right.'” Rabbers v. Comm'r of Soc.
Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting
Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)). II. Objections A. Nonsevere Mental
Impairments Plaintiff argues that the ALJ and the
magistrate judge erred in finding during the step two
analysis that his mental impairments of depression, anxiety
and substance addition disorder were nonsevere. At step two
of the five-step analysis set forth in 20 C.F.R.
§404.1520(a)(4), the ALJ must determine whether the
claimant has a severe impairment. 20 C.F.R.
§404.1520(a)(4)(ii). A severe impairment is “any
impairment or combination of impairments which significantly
limits your physical or mental ability to do basic work
activities, ” 20 C.F.R. §§404.1520(c),
416.920(c), and which lasts or can be expected to last
“for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). If the degree of
limitation due to a mental impairment is rated as
“mild, ” the impairment is generally deemed to be
not severe, unless the evidence otherwise indicates that
there is more than a minimal limitation in the claimant's
ability to do basic work activities. 20 C.F.R.
severe impairment is established by medical evidence
consisting of signs, symptoms, and laboratory findings, not
just by a claimant's statement of symptoms. Griffith
v. Comm'r, 582 Fed.Appx. 555, 559 (6th Cir.
2014)(citing 20 C.F.R. §416.908). Plaintiff bears the
burden of proving the existence of a severe, medically
determinable impairment that meets the twelve-month
durational requirement. Jones v. Comm'r of Soc.
Sec., 336 F.3d 469, 474 (6th Cir. 2003). The failure to
categorize an impairment as severe at step two is not
prejudicial error if the ALJ found other severe impairments
at step two and considered all of the claimant's
impairments, including the nonsevere impairments, in the
remaining steps of the disability determination. See
Nejat v. Comm'r of Soc. Sec., 359 Fed.Appx. 574, 577
(6th Cir. 2009).
magistrate judge concluded that the ALJ reasonably relied on
record evidence in finding that plaintiff's mental
impairments did not result in significant limitations. The
magistrate judge further noted that even assuming the ALJ
erred at step two in not classifying plaintiff's mental
impairments as severe, no reversible error occurred because
the ALJ also considered all of plaintiff's impairments,
including his mental impairments, in the remaining steps of
the disability analysis. Doc. 14, p. 13. The court agrees
with the conclusions of the magistrate judge.
two, the ALJ found that plaintiff has mild limitations in the
activities of daily living, noting that the February 4, 2014,
report of plaintiff's consultative psychological
examination by James N. Spindler, M.S., and treatment notes
from the Guernsey Counseling Center revealed no signs that
plaintiff is unable to care for his personal needs. PAGEID
the area of social functioning, the ALJ concluded that
plaintiff had mild limitations. The ALJ noted that although
plaintiff testified that he did not engage in social
activities due to his physical limitations, he lived with his
fiancee and regularly attended church services. Plaintiff
told the consultative psychological examiner, James Spindler,
M.S., that although he did not get along with his siblings,
he did get along with his mother and his children. PAGEID 87.
regard to concentration, persistence or pace, the ALJ found
mild limitations. Although plaintiff reported during an
intake interview that his attention span, ability to
concentrate, and memory were impaired, the ALJ noted that
there was no evidence that the social workers who completed
the intake interview did a mental status examination. PAGEID
87-88. The ALJ pointed to a psychiatric examination in
September, 2014, which showed that: plaintiff's thought
process was clear and linear; his judgment and insight were
intact; he was well oriented to person, time and place; and
no memory problems or problems with his attention level or
concentration were noted. The ALJ observed that plaintiff
exhibited no difficulty completing basic calculations during
his psychological consultative exam. PAGEID 88. The ALJ also
noted the opinions of the state agency psychological
consultants, Paul Tangeman, Ph.D. and Janet Souder, Psy.D.,
who reviewed plaintiff's records and came to the
conclusion that plaintiff's mental limitations were mild.
step five discussion of the plaintiff's residual
functional capacity, the ALJ continued to reference records
relating to plaintiff's mental impairments, including:
plaintiff's counseling for anxiety and depression in 2014
and 2015; plaintiff's treatment for depression by Dr.
Aline Daou, who prescribed antidepressant medication but
noted that plaintiff's mental status exams showed normal
thought content, insight and judgment through January, 2014;
the March 10, 2014, physical consultative examination by Dr.
Mark Weaver, who noted that plaintiff was alert and well
oriented with a pleasant affect and appropriate mood; a
November, 2014, neurological exam report which noted that
plaintiff's mood and affect were normal; the March 26,
2015, exam notes of Dr. Philip Kennedy which stated that
plaintiff's psychiatric exam was normal; and the December
10, 2015, exam notes of Dr. Anthony Reichley stating that
plaintiff's psychiatric exam showed a normal mood and
affect. PAGEID 90-93.
gave “significant weight” to the opinions of the
state agency psychological consultants, Dr. Tangeman and Dr.
Souder, that plaintiff's mental impairments resulted in
mild restrictions in activities of daily living, social
functioning, and concentration, persistence or pace. The ALJ
also stated that these agency opinions were consistent with
the mental status consultative exam completed by James
Spindler in February of 2014. Mr. Spindler reported that
plaintiff knew the date, could complete basic calculations,
had a girlfriend and a good relationship with his children,
had no major difficulty maintaining his focus during the
exam, and appeared capable of understanding, remembering and
carrying out instructions in most job settings. PAGEID 94.
argues that Mr. Spindler's statement that plaintiff was
capable of understanding, remembering and carrying out
instructions only in “most job settings” must
mean that plaintiff's mental impairments more than
minimally affected plaintiff's ability to perform basic
work functions. Plaintiff argues that the ALJ's reliance
on Mr. Spindler's opinion therefore rendered the
ALj's findings of mild impairments inconsistent.
Plaintiff's argument is not well taken in light of the
applicable regulations, which define a severe impairment is
“any impairment or combination of impairments which
significantly limits your physical or mental ability to do
basic work activities[.]” 20 C.F.R.
§§404.1520(c), 416.920(c). “Basic work
activities” are defined as “the abilities and
aptitudes necessary to do most jobs[, ]” including
“[u]nderstanding, carrying out, and remembering simple
instructions[.]” 20 C.F.R. §404.1522(b)(3). Mr.
Spindler's finding that plaintiff was capable of
understanding, remembering and carrying out instructions
“in most job settings, ” see PAGEID 670,
amounts to a finding that plaintiff is capable of engaging in
basic work activities, which only requires that plaintiff
have the abilities necessary “to do most jobs.”
Mr. Spindler's findings are consistent with the opinions
of the state agency consultants and with the ALJ's
conclusion that plaintiff's mental impairments were mild
ALJ's finding that plaintiff's mental impairments are
nonsevere is supported by sufficient evidence, and the ALJ
did not err in failing to include restrictions in
plaintiff's RFC specifically addressing his mild mental
impairments. B. Consideration of Plaintiff's
Headaches Plaintiff argues that the ALJ erred by failing
to classify his headaches as a medically determinable
impairment and by not considering the impact of his headaches
on his RFC. The ALJ did not specifically discuss
plaintiff's complaints of headaches at step two of the
analysis. Plaintiff contends that the ALJ must therefore have
concluded that his headaches did not constitute a medically
determinable impairment. The magistrate judge concluded that
the ALJ's failure to specifically designate
plaintiff's headaches as a medically determinable
impairment was not error because there was no objective
medical evidence to support such a ...