Selmon v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ZEPHRA S.,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_________________________________/
Hon. Paul L. Maloney
Case No. 1:25-cv-409
REPORT AND RECOMMENDATION
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g),
to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim for
Disability Insurance Benefits (DIB) under Title II of the Social Security Act.
Section 405(g) limits the Court to a review of the administrative record and provides that
if the Commissioner’s decision is supported by substantial evidence, it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. Plaintiff seeks
review of the Commissioner’s decision.
Pursuant to 28 U.S.C. § 636(b)(1)(B), authorizing United States Magistrate Judges to
submit proposed findings of fact and recommendations for disposition of social security appeals,
I recommend that the Commissioner’s decision be affirmed.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and of the
record made in the administrative hearing process. See Willbanks v. Sec’y of Health and Human
Servs., 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security case is
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limited to determining whether the Commissioner applied the proper legal standards and whether
there exists in the record substantial evidence supporting the decision. See Brainard v. Sec’y of
Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de
novo review of the case, resolve evidentiary conflicts, or decide questions of credibility. See
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Fact finding is the Commissioner’s province,
and those findings are conclusive provided substantial evidence supports them. See 42 U.S.C. §
405(g).
Substantial evidence is more than a scintilla but less than a preponderance. See Cohen v.
Sec’y of Dept. of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992). It is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson
v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). In
applying this standard, a court must consider the evidence as a whole, while accounting for any
evidence that fairly detracts from its weight. See Richardson v. Sec’y of Health and Human Servs.,
735 F.2d 962, 963 (6th Cir. 1984). The substantial evidence standard contemplates a zone within
which the decision maker can properly rule either way without judicial interference. See Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986). This standard affords the administrative decision maker
considerable latitude and precludes reversal simply because the evidence would have supported a
contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
Plaintiff filed an application for DIB on November 9, 2021, alleging that she had been
disabled since September 3, 2021, due to arthritis, migraines, and high cholesterol. (PageID.90,
218–19.) Plaintiff was 57 years old on her alleged onset date and at the time she filed her
application. (PageID.90.) Plaintiff had completed four years of college and had previous work as
a paralegal, a legal secretary, and a data entry clerk. (PageID.42, 254.) Plaintiff’s application was
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denied 	initially 	and 	on 	reconsideration, 	after 	which 	she 	requested 	a 	hearing 	before 	an
Administrative Law Judge (ALJ).
On September 20, 2023, ALJ Dennis J. Raterink held a hearing by telephone and received
testimony from Plaintiff, who was represented by counsel, and Renee Scally, an impartial
vocational expert (VE). (PageID.49–87.) On January 19, 2024, the ALJ issued a written decision
finding that Plaintiff was not entitled to benefits because she was not disabled from her alleged
onset date through the date of the decision. (PageID.23–43.) The Appeals Council denied
Plaintiff’s request for review on October 9, 2024. (PageID.10–12.) Therefore, the ALJ’s ruling
became the Commissioner’s final decision. See Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 434
(6th Cir. 2007). Plaintiff timely initiated this civil action for judicial review on April 14, 2025.
ANALYSIS OF THE ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
1 1. 	An individual who is working and engaging in substantial gainful activity will not be found
to be “disabled” regardless of medical findings (20 C.F.R. §§ 404.1520(b), 416.920(b));
2. 	An individual who does not have a “severe impairment” will not be found “disabled” (20
C.F.R. §§ 404.1520(c), 416.920(c));
3. 	If an individual is not working and is suffering from a severe impairment which meets the
duration requirement and which “meets or equals” a listed impairment in Appendix 1 of
Subpart P of Regulations No. 4, a finding of “disabled” will be made without consideration
of vocational factors (20 C.F.R. §§ 404.1520(d), 416.920(d));
4. 	If an individual is capable of performing her past relevant work, a finding of “not disabled”
must be made (20 C.F.R. §§ 404.1520(e), 416.920(e));
5. 	If an individual’s impairment is so severe as to preclude the performance of past work, other
factors including age, education, past work experience, and residual functional capacity
must be considered to determine if other work can be performed (20 C.F.R. §§ 404.1520(f),
416.920(f)).
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dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a). The regulations also provide that, if a claimant suffers from a
nonexertional impairment as well as an exertional impairment, both are considered in determining
residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders, and
she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
to perform her previous work, and cannot, considering her age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five of the sequential evaluation process, Plaintiff bears the burden of
proof through step four of the procedure, the point at which her residual functional capacity (RFC)
is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which point claimant
bears the burden of proof).
After determining that Plaintiff met the insured status requirements of the Act through
December 31, 2027, and had not engaged in substantial gainful activity since her alleged onset
date, September 3, 2021, the ALJ found that Plaintiff suffered from severe impairments of
degenerative disc disease of the cervical and lumbosacral spine; migraines; and obesity.
(PageID.25–26.)
At step three, the ALJ determined that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled any impairment identified in the Listing of
Impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1. (PageID.29–31.) The ALJ
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then found that Plaintiff had the RFC to perform sedentary work within the meaning of 20 C.F.R.
§§ 404.1567(a), subject to the following limitations:
[S]he could do no more than occasional reaching overhead with the right upper
extremity and no more than frequent reaching in all other directions with the right
upper extremity; could do no climbing of ladders, ropes, and scaffolds; no crawling;
no more than occasional climbing of ramps and stairs, stooping, kneeling,
crouching, or balancing; and no work at unprotected heights or with moving
mechanical parts.
(PageID.31.)
At step four, the ALJ found that Plaintiff retained the RFC to perform her past relevant
work as a paralegal as actually performed, a legal secretary as generally performed, and a data
entry clerk as generally and actually performed. (PageID.42–43.) Therefore, the ALJ found that
Plaintiff was not disabled during the period under consideration. (PageID.43.)
DISCUSSION
Plaintiff raises three issues in her appeal: (1) the ALJ failed to account for the
environmental limitations stemming from her migraine headaches; (2) the ALJ committed legal
error by failing to adopt limitations he found credible in his RFC finding and hypothetical
questions to the VE; and (3) the ALJ erred in finding that Plaintiff’s prior work as a data entry
clerk qualified as past relevant work. (ECF No. 7 at PageID.915.)
I. 	Migraine-Related Environmental Limitations
A claimant’s RFC represents the “most [a claimant] can still do despite [his or her]
limitations.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 505 (6th Cir. 2014); see also SSR
96-8P, 1996 WL 374184, at *1 (a claimant’s RFC represents her ability to perform “work-related
physical and mental activities in a work setting on a regular and continuing basis,” defined as “8
hours a day, for 5 days a week, or an equivalent work schedule”). In determining a claimant’s
RFC, the ALJ considers medical source statements and all other evidence of record. 20 C.F.R. §
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404.1545(a)(3); see also Reynolds v. Saul, No. 4:20-CV-83, 2021 WL 2169091, at *4 (W.D. Ky.
May 27, 2021) (“The RFC finding is based on a consideration of medical opinions and all other
evidence in the case record, including a claimant’s subjective statements about his impairments.”).
The ALJ’s RFC determination must be supported by substantial evidence. Torres v. Comm’r of
Soc. Sec., 490 F. App’x 748, 754 (6th Cir. 2012).
Plaintiff contends that the ALJ erred by failing to include environmental limitations in his
RFC finding for her migraine headaches, which the ALJ found to be a severe impairment at step
two. More specifically, Plaintiff argues that while the ALJ found that her migraines warranted
environmental limitations, the ALJ failed to include such limitations in his RFC finding and failed
to explain why he did not include them. Plaintiff contends that her statements in her March 2022
Headache Questionnaire support environmental limitations of “low-stress work with limited
exposure to bright lights and loud sounds.” (ECF No. 7 at PageID.918–19 (citing PageID.267–
68).) Defendant responds that the ALJ’s decision shows that he properly considered the overall
record and found that Plaintiff’s proposed limitations were unnecessary. (ECF No. 8 at
PageID.940.)
The ALJ summarized the medical evidence as follows in evaluating Plaintiff’s subjective
complaints about her migraine-related symptoms:
The record shows the claimant has some limitations from migraines; however, the
objective medical evidence of record does not support the extent of the claimant’s
alleged limitations. The claimant has been diagnosed with migraine headaches (See
Ex. 12F/12). The claimant has been prescribed medication for pain, with Aimovig
injections prescribed specifically for migraines (Ex. 3F/14; See, generally, Ex. 2F-
7F; 9F-10F; and 12F-14F). In October 2021, she went to the emergency room for a
headache that was not improved by Toradol provided by her primary care provider
(Ex. 3F/11). However, the claimant reported some resolution following admiration
(sic) of intravenous fluids with Benadryl, Decadron, Reglan, Toradol, and
Morphine, and she was discharged in stable condition to follow up with her primary
care provider (Ex. 3F/11). At a physical therapy session the same day, she had
subjective tenderness upon palpation of the bilateral occipitals, as well as increased
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tissue tension (Ex. 8F/12-13). However, she reported relief from Toradol and
morphine received at the emergency room, despite noting (sic) (See Ex. 8F/12-13).
In November 2021, she reported having dull headaches (Ex. 8F/16). At a pain clinic
evaluation, the claimant indicated she had worsening headaches (Ex. 2F/98-99).
However, in December 2021, at a physical therapy session, she stated she was not
having as many headaches (See Ex. 8F/16). In February 2022, she indicated she
once had a migraine due to neck pain (Ex. 8F/26). However, the medical evidence
of record does not document reports of ongoing, uncontrolled migraine headaches,
nor do they show further emergency room evaluations of uncontrolled migraine
headaches (See, generally, Ex. 1F-14F).
(PageID.37–38.) In addition, earlier in his RFC discussion, when addressing Plaintiff’s reported
symptoms and statements, the ALJ noted that in her March 2022 Headache Questionnaire, Plaintiff
reported that her headaches lasted one-to-two days and that she thought stress and possibly
environmental factors or food caused her headaches; that she experiences milder headaches
monthly with her Aimovig injections, with occasional severe headaches; that Excedrin migraine
and Neurontin made migraines more tolerable; and that during a headache event, she lied down in
a dark and quiet room with little movement and constant use of a heating pad. (PageID.31–32
(citing PageID.267–68.)
The ALJ also discussed Plaintiff’s migraines in evaluating the prior administrative findings
of State agency medical consultants Drs. Mulligan and Chiambretti, who found Plaintiff’s
migraines “controlled w[ith] medications” and “[n]on-limiting,” and restricted her to light work
with postural limitations. (PageID.40–41, 99–100, 111–12.) The ALJ found their assessments
partially persuasive, in part, because they did not adequately consider the effects of Plaintiff’s
migraines. The ALJ found that Plaintiff’s “degenerative disc disease, migraines, and obesity
support greater exertional limitations as well as greater limitations in crawling.” (PageID.41.) In
summarizing his RFC finding, the ALJ stated that he limited Plaintiff “to sedentary work with
environmental restrictions” due to her migraines. (PageID.41.) While the ALJ did not elaborate on
the environmental restrictions, his RFC finding includes environmental restrictions of “no work at
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unprotected heights or with moving mechanical parts.” (PageID.31.) See Larson v. Comm’r of Soc.
Sec., No. 2:19-cv-212, 2021 WL 1100018, at *6 n.3 (W.D. Mich. Mar. 23, 2021) (“Environmental
limitations include restrictions related to: driving; working at unprotected elevations; working with
dangerous machinery; extremes of temperature, noise, and vibration; and fumes, dust, and poor
ventilation.”).
Contrary to Plaintiff’s argument, the ALJ did not err in failing to adopt Plaintiff’s proposed
limitations. The ALJ’s decision shows that he carefully considered the record as a whole, including
Plaintiff’s statements and subjective complaints, and found that Plaintiff’s migraines were not as
limiting as she alleged. While the ALJ did find that Plaintiff’s migraine symptoms required some
limitations, he found that those symptoms could be accommodated through greater exertional
limitations associated with sedentary work and limitations of no work at unprotected heights or
with moving mechanical parts. This finding is supported by substantial evidence and is well within
the ”zone of choice.” Mullen, 800 F.2d at 545. Moreover, the ALJ’s RFC discussion, as set forth
above, articulates sufficient rationale to create an accurate and logical bridge between his
consideration of the evidence pertaining to Plaintiff’s migraines and his RFC finding to permit
meaningful appellate review. See Stacey v. Comm’r of Soc. Sec., 451 F. App’x 517, 519 (6th Cir.
2011) (noting that the ALJ “must say enough ‘to allow the appellate court to trace the path of his
reasoning’”) (quoting Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995)).
Accordingly, this claim of error is rejected.
II. 	Lack of Mental Limitations
Plaintiff next argues that the ALJ erred by not including, or accounting for, the “mild”
mental limitations in his paragraph B findings at step two in his RFC assessment and hypothetical
to the VE. Plaintiff contends that that the ALJ’s failure to incorporate the mental limitations was
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not harmless because the ALJ made his decision at step four, which entailed consideration of how
Plaintiff’s mild mental limitations affect her ability to perform the skilled functions of her past
relevant work as a paralegal and a legal secretary. (ECF No. 7 at PageID.920–925.)
Defendant responds that Plaintiff fails to demonstrate error because mild limitation
findings at step two do not necessarily equate to a need for mental RFC restrictions. (ECF No. 8
at PageID.941.) Defendant further notes that, in any event, Plaintiff fails to meet her burden of
demonstrating a more restrictive RFC finding as she cites no specific mental restriction she
believes the ALJ should have adopted and points to no record evidence supporting a more
restrictive RFC. (Id. at PageID.944.)
The regulation set forth in 20 C.F.R. § 404.1520a “requires adjudicators to assess an
individual’s limitations and restrictions from a mental impairment(s) in categories identified in the
‘paragraph B’ and ‘paragraph C’ criteria of the adult mental disorders listings.” SSR 96-8P, 1996
WL 374184, at *4. These findings, which examine four broad areas of functioning, are used to rate
the severity of the claimant’s mental impairment(s) at steps two and three of the sequential
evaluation process. Id. They are not a substitute for an RFC, which “requires a more detailed
assessment by itemizing various functions contained in the broad categories found in paragraphs
B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments.” Id.
At step two, the ALJ included an extensive discussion of the medical evidence of record
pertaining to Plaintiff’s depression and anxiety. For example, he noted that Plaintiff had a
documented history of needle phobia in connection with administration of pain relief injections
and was thus given intravenous conscious sedation due to anxiety. Nonetheless, he observed that
mental status examination findings were routinely normal and that “[d]uring multiple evaluations,
[Plaintiff] denied mental impairment symptoms including anxiety, depression hallucinations,
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delusions, and/or difficulty sleeping.” (PageID.26–27.) The ALJ further noted the lack of record
evidence showing that Plaintiff suffered ongoing symptoms from her mental impairments, as well
as inpatient treatment, ongoing use of psychotropic medication or counseling, emergency room
visits, intensive case management, or hospitalizations for her mental impairments. (PageID.27.)
The ALJ also addressed the paragraph B factors and found that Plaintiff had mild limitations in
each of the four broad areas of functioning. (PageID.27–28.) Based on this evidence, the ALJ
concluded that Plaintiff’s depression and anxiety were non-severe because they caused no more
than minimal limitation in Plaintiff’s ability to perform basic mental work activities. (PageID.27.)
Although the ALJ confirmed that the paragraph B findings are not an RFC assessment and that a
more detailed assessment is required for steps four and five, the ALJ indicated that his RFC
assessment later in the decision “reflects the degree of limitation I have found in the ‘paragraph B’
mental function analysis.” (PageID.28.)
Citing several cases from within and outside of the Sixth Circuit, Plaintiff argues that “[t]he
omission of mild mental limitations is absolute legal error when the issue involves performing
skilled work.” (ECF No. 7 at PageID.924.) But many courts in the Sixth Circuit, including judges
within this district, have held that an ALJ does not err by failing to include mild limitations from
a step two (or three) finding in an RFC assessment. See Hower v. Comm’r of Soc. Sec., No. 1:23-
cv-157, 2023 WL 8654386, at *3 (W.D. Mich. Nov. 29, 2023), report and recommendation
adopted, 2023 WL 8652308 (W.D. Mich. Dec.14, 2023) (finding that the ALJ did not err by
excluding step two finding of mild limitations in mental functioning from the RFC assessment);
Carroll v. Comm’r of Soc. Sec., No. 1:16CV2875, 2018 WL 550671, at *8 (N.D. Ohio Jan. 5,
2018), report and recommendation adopted, 2018 WL 501306 (N.D. Ohio Jan. 22, 2018) (“The
ALJ was not required to include mild mental limitations in the RFC.”); Caudill v. Comm’r of Soc.
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Sec., No. 2:16-cv-818, 2017 WL 3587217, at *6 (S.D. Ohio Aug. 21, 2017), report and
recommendation adopted, 2017 WL 4222983 (S.D. Ohio Sept. 21, 2017) (“Contrary to Plaintiff’s
apparent contention, the ALJ’s determination that she had some mild impairment does not require
inclusion of mental limitations into the RFC.”); Burrell v. Comm’r of Soc. Sec., No. 14-14529,
2016 WL 1165994, at *10 (E.D. Mich. Feb. 29, 2016), report and recommendation adopted, 2016
WL 1161548 (E.D. Mich. Mar. 23, 2016) (stating that “mild limitations do not require
incorporation into an RFC assessment”) (citing Boley v. Astrue, No. 11-10896, 2012 WL 680393,
at *14 (E.D. Mich. Feb. 10, 2012), report and recommendation adopted, 2012 WL 680392 (E.D.
Mich. Mar. 1, 2012)). Moreover, as one judge of the Eastern District of Michigan noted in a recent
decision, an ALJ is “not required to specifically discuss each non-severe impairment in the RFC
assessment to demonstrate that the impairments were considered.”2 Smith v. Comm’r of Soc. Sec.,
715 F. Supp. 3d 994, 999 (E.D. Mich. 2024) (citing Emard v. Comm’r of Soc. Sec., 953 F.3d 844,
851–52 (6th Cir. 2020)). Here, the ALJ’s step-two discussion demonstrates that he fully evaluated
whether Plaintiff’s non-severe mental impairments warranted mental function limitations and
concluded that they did not. Because substantial evidence supports this finding, it must be
affirmed.
Plaintiff’s argument that her situation differs from other cases because her past relevant
work, which the ALJ found she could perform, was skilled rather than unskilled work is
unpersuasive, as this is a distinction without a difference. As set forth above, the ALJ assesses a
claimant’s RFC first and then determines whether the claimant, with that RFC, is capable of
performing her past relevant work. Whether past work is skilled or unskilled, the same rule applies:
2 I also note that the ALJ did discuss much of the evidence pertaining to Plaintiff’s mental
impairments in his RFC discussion in evaluating the prior administrative medical findings of State
agency psychological consultants George Starrett, Ed. D, and Jerry Csakasy, Ph. D. (PageID.40.)
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“[A]n ALJ need only include limitations arising from an impairment where the impairment affects
a claimant’s capacity to work.” Caudill, 2017 WL 3587217, at *6 (citing Griffeth v. Comm’r of
Soc. Sec., 217 F. App’x 425, 426 (6th Cir. 2007)). Because the ALJ found Plaintiff’s mild mental
limitations did not affect her capacity to work, there was no error.
I further find that remand is unnecessary because Plaintiff fails to meet her burden of
showing that she is more limited than what the RFC assessed. See Casey v. Sec'y of Health &
Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993) (“Plaintiff has the ultimate burden of
establishing the existence of a disability.”). Plaintiff does not indicate what functional limitation(s)
she believes the ALJ should have adopted to accommodate her non-severe depression and anxiety,
and she cites no medical evidence supporting a specific mental limitation. In fact, no medical
source 	opined 	that 	functional 	limitations 	are 	needed 	to 	accommodate 	Plaintiff’s 	mental
impairments. See Shamsud-Din v. Comm’r of Soc. Sec., No. 16-cv-11818, 2017 WL 3574694, at
*7 (E.D. Mich. July 24, 2017), report and recommendation adopted, 2017 WL 3531438 (E.D.
Mich. Aug. 17, 2017) (finding no reversible error warranting remand based on the ALJ’s failure
to include mental RFC limitations to accommodate the claimant’s mild mental limitations where
the claimant failed to indicate what additional limitations the ALJ should have included to
accommodate her depression).
Therefore, I find this argument without merit.
III. 	Data Entry Clerk Position
Plaintiff’s final argument is that the ALJ erred in finding that her work as a data entry clerk
qualified as past relevant work. As Defendant notes, even if the ALJ erred in finding this job was
past relevant work for purposes of the step-four analysis, the error is harmless, as the ALJ properly
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found that Plaintiff’s paralegal and legal secretary jobs qualified as past relevant work. (ECF No.
8 at PageID.945–46.) Accordingly, this argument fails.
CONCLUSION
For the reasons stated herein, I recommend that the Commissioner’s decision be affirmed.
Dated: November 14, 2025 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
NOTICE
OBJECTIONS to this report and recommendation must be filed with the Clerk of Court
within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file
objections within that time waives the right to appeal the District Court’s order. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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