                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0598n.06

                                          Case No. 18-3371

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                                    FILED
                                                                              Nov 29, 2018
SUSAN L. KESTEL,                                        )
                                                                          DEBORAH S. HUNT, Clerk
                                                        )
          Plaintiff-Appellant,                          )
                                                        )        ON APPEAL FROM THE
v.                                                      )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE SOUTHERN
COMMISSIONER OF SOCIAL SECURITY,                        )        DISTRICT OF OHIO WESTERN
                                                        )        DIVISION
          Defendant-Appellee.                           )
                                                                                      OPINION


BEFORE:          COLE, Chief Judge; GRIFFIN and KETHLEDGE, Circuit Judges.

          COLE, Chief Judge. Plaintiff-Appellant Susan L. Kestel seeks review of a district court’s

decision affirming the decision of an administrative law judge (“ALJ”) who denied her request for

social security disability benefits. Because substantial evidence supports the ALJ’s decision, we

affirm.

                                        I. BACKGROUND

     A. Factual Background

          Kestel filed applications for Title XVI Supplemental Security Disability Benefits and Title

II Social Security Disability Benefits on October 31, 2012, and November 2, 2012, respectively.

In both applications, Kestel alleged disability beginning June 7, 2010, due to depression, diabetes,

arthritis, hypertension, and a heart murmur. After the state agency denied Kestel’s applications
Case No. 18-3371, Kestel v. Commissioner of Social Security


initially and on reconsideration, she requested a hearing with an ALJ. At the time of the hearing,

she was forty-nine years old.

   B. Procedural History

           1. Administrative Hearing

       An administrative hearing was held in April 2015. At the hearing, Kestel testified that she

had only completed the eighth grade, but later earned her GED. She also testified that the main

reason she believed she could not work was due to her anxiety. More specifically, Kestel believes

she became completely disabled after her mother’s death on June 7, 2010, at which time she

described having “a breakdown”:

       I just – everyday, I just – I’m fearful, and I don’t exactly know why. I just feel –
       I’m just nervous and fearful throughout the day. And then depression on some
       days. Some days the depression is worse than the anxiety, and sometimes the
       opposite. Sometimes I have a mixture of both. Depression – neither – like
       depression is no fun at all, because all I want to do is just lay around and I don’t
       care about anything, but then the anxiety – when that happens, that is just so
       stressful, and it takes a tole [sic] on me, like physically even. But just being fearful
       all the time.

(Hr’g Tr., R. 7-2, PageID 111.) Kestel also described feelings of anger.

       In terms of physical impairments, Kestel testified that she experiences chronic pain all over

her body; she “tore all four of [her] ACLs out in [her] right knee”; she suffers from arthritis in her

right knee; her left knee has a torn meniscus; and she has diabetes and hypothyroidism. When

asked how she spends her day, she responded “not much of anything.” (Id. at PageID 119.) She

elaborated that she lies down a lot, stretches, walks around, and takes a three-hour nap every day.

Although she lives with a friend, Kestel testified that she does all the household chores, does her

own laundry, and goes to the grocery store about once a month. Kestel also testified that she has

a driver’s license but drives infrequently.




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Case No. 18-3371, Kestel v. Commissioner of Social Security


       At the time of her mother’s death, Kestel was not working. Prior to her mother’s death,

though, Kestel worked as a desk clerk at a motel, a gas station clerk, a typing assistant at a title

company, and a realtor’s assistant. Following Kestel’s testimony, the ALJ asked vocational expert

Linda Tolley (“the VE”) two hypotheticals regarding Kestel’s ability to work. First, the ALJ asked

the VE to assume a hypothetical individual with the same age, education, and vocational

background as Kestel, who was limited to light work with the following additional limitations: she

can never climb ladders, ropes, or scaffolds; she can frequently climb ramps and stairs; can

frequently stoop, kneel, crouch, and crawl; must avoid concentrated exposure to pulmonary

irritants; and must avoid moderate exposure to hazards. The VE testified that even with those

limitations, the hypothetical individual could perform all of Kestel’s previous work, minus the

typing assistant.

       In the second hypothetical, the ALJ asked the VE about a hypothetical individual with the

same limitations he had just described, but with added mental limitations:

       The individual is capable of performing simple, repetitive one and two-step job
       tasks in a slow to moderate paced environment without fast-paced-production-
       deadline constraints. She is capable of infrequent brief and superficial contact with
       coworkers, supervisors and the general public. And she can adapt to a static work
       environment, with clear, consistent performance expectations where changes are
       fully explained.

(Id. at PageID 131.) The VE testified that with the incorporation of the mental limitations, all past

work would be eliminated. But the VE explained that sufficient jobs still existed in the national

and state economy for the hypothetical individual to perform, such as a garment folder, a swatch

clerk, and a “bagger garment” worker.

           2. The ALJ’s Decision

       In his decision, the ALJ found that Kestel met the insured status requirements of the Social

Security Act through December 21, 2015, and had not engaged in substantial gainful activity since

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Case No. 18-3371, Kestel v. Commissioner of Social Security


June 7, 2010, her alleged onset date. Further, the ALJ found that Kestel suffered from the

following severe impairments: diabetes mellitus, spine disorder, dysfunction of major joints, left

carpal tunnel syndrome, and chronic obstructive pulmonary disease. The ALJ also opined that

although Kestel suffered from affective disorder and anxiety disorder, those impairments did not

cause more than minimal limitations in her ability to perform basic mental work activities, and

therefore were non-severe. More specifically, the ALJ held that Kestel’s mental impairments

caused no limitations in her activities of daily living, mild limitations in her social functioning,

and mild limitations in her “concentration, persistence, or pace.” (ALJ Op., R. 7-2, PageID 78.)

       Despite Kestel’s impairments, the ALJ opined that she did not have an impairment or

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

impairments. The ALJ then concluded that Kestel’s physical impairments limited her to a residual

functional capacity (“RFC”) of light work, with various physical limitations but, notably, no

mental limitations. Finally, the ALJ found, based on the VE’s testimony, that Kestel could perform

her past relevant work as an administrative assistant, front desk clerk, and cashier.

           3. The District Court’s Decision

       Pursuant to 42 U.S.C. §§ 405(g) and 1383(c), Kestel timely filed a civil action in the United

States District Court for the Southern District of Ohio for review of the ALJ’s decision. The

magistrate judge found that there was substantial evidence for the ALJ’s decision and

recommended affirming. The district court agreed and adopted the magistrate judge’s report and

recommendation.

       Kestel timely appealed.




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Case No. 18-3371, Kestel v. Commissioner of Social Security


                                         II. ANALYSIS

           A. Standard of Review

       Under 42 U.S.C. § 405(g), our review of the Commissioner’s decision is limited to

determining whether the factual findings of the ALJ are supported by substantial evidence and

whether the correct legal standards were applied. See Cutlip v. Sec’y of Health & Human Servs.,

25 F.3d 284, 286 (6th Cir. 1994) (per curiam). Substantial evidence means “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.” Id. We may not try the case de novo, resolve conflicts

in evidence, or decide questions of credibility. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528

(6th Cir. 1997). If supported by substantial evidence and decided under the correct legal standard,

the Commissioner’s decision must be affirmed even if this Court would decide the matter

differently, and even if substantial evidence also supports the claimant’s position. Mullen v.

Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc).

           B. Legal Framework for Evaluating Disability Claims

       “The plaintiff has the ultimate burden to establish an entitlement to benefits by proving the

existence of a disability . . . .” Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th

Cir. 1992). The Social Security Act defines “disability” as the “inability to engage in any

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

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

continuous period of not less than 12 months.” Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d

647, 652 (6th Cir. 2009) (citing 42 U.S.C. § 423(d)(1)(A)).

       To make a determination as to disability, an ALJ undertakes a five-step sequential

evaluation mandated by regulation. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir.



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2004). First, the claimant must demonstrate that she has not engaged in substantial gainful activity

during the claimed period of disability. 20 C.F.R. § 404.1520(a)(4)(i). Second, the claimant must

show that she suffers from a severe medically determinable physical or mental impairment.

§ 404.1520(a)(4)(ii). Third, if the claimant shows that her impairment meets or medically equals

one of the impairments listed in 20 C.F.R. pt. 404, Subpt. P, App. 1, she is deemed disabled.

§ 404.1520(a)(4)(iii). If not, the ALJ moves to the fourth step to determine whether, based on the

claimant’s residual RFC, the claimant can perform her past relevant work, in which case the

claimant is not disabled. § 404.1520(a)(4)(iv). If the claimant cannot perform past relevant work,

the fifth step requires the ALJ to determine whether the claimant can make an adjustment to other

work, in which case the claimant is not disabled. § 404.1520(a)(4)(v). “The claimant bears the

burden of proof during the first four steps, but the burden shifts to the Commissioner at step five.”

Wilson, 378 F.3d at 548 (citing Walters, 127 F.3d at 529).

       Kestel argues that the ALJ erred in two ways. First, Kestel argues that the ALJ incorrectly

found that her alleged mental impairments were “non-severe” at step two of the disability analysis.

As a result, she next argues that the ALJ’s RFC at step four erroneously omitted any mental

impairments, and thus is unsupported by substantial evidence. We conclude, however, that the

record shows otherwise.

           C. Severity of Kestel’s Mental Impairments

       At step two, the ALJ considers the severity of a claimant’s impairments. 20 C.F.R.

§ 404.1520(a)(4)(ii). An impairment is not considered severe if it does not “significantly limit

[one’s] physical or mental ability to do basic work activities[.]” 20 C.F.R. § 404.1522(a). As

mentioned, a claimant bears the burden of demonstrating that she suffers from a medically

determinable impairment. See Wilson, 378 F.3d at 548.



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       This court construes step two as a de minimis hurdle, Rogers v. Comm’r of Soc. Sec., 486

F.3d 234, 243 n.2 (6th Cir. 2007), intended to “screen out totally groundless claims.” Nejat v.

Comm’r of Soc. Sec., 359 F. App’x 574, 576 (6th Cir. 2009) (quoting Farris v. Sec’y of Health &

Human Servs., 773 F.2d 85, 89 (6th Cir. 1985)). But when an ALJ determines that one (or more)

of a claimant’s impairments is severe, the ALJ then proceeds to consider the “limitations and

restrictions imposed by all of an individual’s impairments, even those that are not ‘severe.’” Fisk

v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007) (emphasis added) (quoting Soc. Sec. Rul. 96–8p,

1996 WL 374184, at *5). Thus, because an ALJ considers all of a claimant’s impairments in the

remaining steps of the disability determination, any perceived failure to “find additional severe

impairments at step two ‘[does] not constitute reversible error.’” Id. (quoting Maziarz v. Sec’y of

Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)).

       Here, although the ALJ classified Kestel’s affective disorder and anxiety disorder as non-

severe, he concluded that Kestel had a variety of other impairments that qualified as severe. As

we have held before, Maziarz controls our analysis in these circumstances:

       In Maziarz, the agency determined that the claimant suffered from several severe
       impairments but that his cervical condition was not severe. Because the agency
       continued with the remaining steps in the disability determination and because the
       agency “properly could consider claimant’s cervical condition in determining
       whether claimant retained sufficient residual functional capacity to allow him to
       perform substantial gainful activity,” the court held that any error at step two was
       harmless and that it was therefore “unnecessary to decide” whether the agency erred
       in failing to find that the claimant’s cervical condition constituted a severe
       impairment.

Fisk, 253 F. App’x at 583 (internal citations omitted).

       As was the case in Maziarz, despite classifying Kestel’s affective and anxiety disorders as

non-severe, the ALJ determined that Kestel suffered from various other severe impairments. And

in the remaining steps of the disability determination, the ALJ considered Kestel’s “claims of

allegedly disabling mental health symptoms,” but found that Kestel’s noncompliance with and
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Case No. 18-3371, Kestel v. Commissioner of Social Security


lack of mental health treatment suggested that “her mental health symptoms may not have been as

limiting” as alleged.   (ALJ Op., R. 7-1, PageID 83.)        Because the ALJ considered these

impairments in the remaining disability analysis, we find it unnecessary to decide whether the ALJ

erred in classifying Kestel’s mental impairments as non-severe at step two. Fisk, 253 F. App’x at

584 (citing Maziarz, 837 F.3d at 244); see also Nejat, 359 F. App’x at 577 (“[E]ven if the ALJ

erred at step two, the ALJ’s consideration of the cumulative effect of [the claimant’s] impairments

(both severe and non-severe) throughout the remaining steps of the analysis rendered any error

harmless.”); Kirkland v. Comm’r of Soc. Sec., 528 F. App’x 425, 427 (6th Cir. 2013) (“[S]o long

as the ALJ considers all of the individual’s impairments, the failure to find additional severe

impairments . . . does not constitute reversible error.”) (internal quotation marks and citations

omitted); Hedges v. Comm’r of Soc. Sec., 725 F. App’x 394, 395 (6th Cir. 2018) (per curiam)

(holding that once the ALJ had found at least one severe impairment and considered the limiting

effects of all impairments, “whether the ALJ characterized [the claimant’s] mental-health

impairments as severe or non-severe at step two [was] legally irrelevant and [did] not amount to

error”) (internal quotation marks omitted).

       Thus, to the extent the ALJ’s failure to consider Kestel’s mental impairments was

erroneous, any error was harmless due to the ALJ’s consideration of her mental impairments in

the remaining steps of the disability analysis. See Williams v. Comm’r of Soc. Sec., No. 16-1459,

2017 WL 4541355, at *3 (6th Cir. Mar. 1, 2017) (order) (citing Kepke v. Comm’r of Soc. Sec., 636

F. App’x 625, 634 (6th Cir. 2016)).

           D. Residual Functional Capacity

       Kestel next argues that the ALJ erred at step four of the disability analysis. Kestel alleges

that “[t]he record contains multiple opinions from mental health specialists hired by Social



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Security that uniformly agree that [she] suffers from mental health limitations.” (Appellant Br.

31.) According to Kestel, despite this evidence, “[n]one of those limitations were incorporated in

the hypothetical question posed to the vocational expert and none of those limitations were

incorporated into the residual functional capacity,” meaning the RFC was not supported by

substantial evidence.    (Id.)   But Kestel is mistaken.      “The residual functional capacity

determination is expressly reserved for the Commissioner.” Ford v. Comm’r of Soc. Sec., 114 F.

App’x 194, 198 (6th Cir. 2004) (citing 20 C.F.R. §§ 404.1527(e)(2), 404.1546). And it is clear

that the ALJ considered all of the proposed mental health limitations, and the record as a whole,

in opining on Kestel’s RFC.

       As an initial matter, the ALJ noted that Kestel consistently did not show up for or cancelled

appointments with mental health professionals; she was discharged from treatment on two

occasions due to noncompliance; and she did not undergo a psychological assessment until 2012,

more than two years after she experienced her mental “breakdown.” We recognize, as we have

before, “that ALJs must be careful not to assume that a [claimant’s] failure to receive mental-

health treatment evidences a tranquil mental state[,]” for the claimant’s failure to seek treatment

may be another symptom of a disorder itself. White v. Comm’r of Soc. Sec., 572 F.3d 272, 283

(6th Cir. 2009). But in this case there is no evidence that explains Kestel’s lack of treatment for

over two years, and she offered inconsistent explanations regarding her missed appointments. See

id. at 283–84. Thus, the ALJ’s consideration of Kestel’s inconsistent treatment and noncompliance

provided substantial evidence for the conclusion that Kestel’s mental health symptoms may not

have been as limiting as alleged, and we will not substitute our judgment for that of the ALJ.

       Further, the ALJ explained the weight granted to the opinions of each mental health

specialist and the reasons why he discounted certain conclusions. For example, state agency



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psychological consultants Drs. Karla Voyten and Todd Finnerty found Kestel did not satisfy the

diagnostic criteria to meet a listing, but opined that she was limited in her ability to interact

appropriately with the general public and carry out detailed instructions. The ALJ recognized that

these opinions “were rendered by expert medical professionals who had the opportunity to review

the evidence of record,” but found that Kestel’s actual functioning, as revealed in her function

report and the rest of the medical record, “demonstrate that her mental impairments are

considerably less limiting than she alleged.” (ALJ Op., R. 7-2, PageID 85.) Specifically, Kestel

reported in her function report that she drives and prepares her own meals; she testified at her

hearing that she performs various household chores and lives with a roommate; and she reported

during a psychological exam that she gets along well with neighbors, store clerks, and public

officials in the community.

       Another psychologist, Dr. Martin Johnson, found that Kestel’s self-reporting was 75%

reliable and her symptoms were consistent with depression or an anxiety related disorder. In his

functional assessment, he found that Kestel was expected to be able to understand and apply

instructions in the work setting consistent with the intellectual functioning of same aged peers;

could maintain adequate attention and concentration in work demand settings; was likely to

experience some relational difficulties with coworkers and employers in work demand settings;

and was likely to experience some challenges responding appropriately to workplace pressures

related to her ability to work as a team and maintain positive relationships with co-workers and

management. The ALJ assigned Dr. Johnson’s opinion some weight, reasoning that he was a

mental health specialist who had the opportunity to examine Kestel. However, the ALJ found that

the evidence did not support Dr. Johnson’s findings on Kestel’s social limitations, as Kestel

testified that she lives with a friend and she reported no difficulty getting along with family,



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friends, or neighbors in her function report. Additionally, review of the record makes clear that

Kestel has never been terminated from a job due to angry outbursts.

       The ALJ also assigned little weight to the opinion of Dr. H. Owen Ward, a clinical

psychologist who treated Kestel during seven therapy sessions beginning in January 2015. Dr.

Ward opined—in a letter to Kestel’s attorney—as follows:

       I have diagnosed her with 309.81 Posttraumatic Stress Disorder and 296.89 Bipolar
       II. It is my opinion that she is unable to work in any capacity in full or part-time
       employment and that her rehabilitation will take more than a year to complete. I
       also think it is likely that she will never be able to work again.

(R. 7-10, PageID 1341.) The ALJ recognized that although Dr. Ward is a specialist who is familiar

with Kestel, his treatment notes do not support his extreme opinion that she will never be able to

work again. And the ALJ (correctly) noted that Ward’s treatment notes “reveal very little” about

Kestel’s condition and he failed to support his opinion with any specific findings. Moreover, we

note that final responsibility for deciding a claimant’s ability to work is an issue reserved to the

commissioner, and thus Dr. Ward’s opinion regarding Kestel’s perceived inability to work is not

entitled to any controlling weight. See Dutkiewicz v. Comm’r of Soc. Sec., 663 F. App’x 430, 432

(6th Cir. 2016) (per curiam), cert. denied sub nom. Dutkiewicz v. Berryhill, 137 S. Ct. 1365 (2017)

(citing 20 C.F.R. § 404.1527(d)(1), (3); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007)).

       Finally, Kestel references a March 2014 letter from her primary care physician, Dr.

Hemapriya Kumar, as further support for a more restrictive RFC. But the letter, as the ALJ

recognized, is “vague” and unclear: “Because of the multiple commodities she may to be [sic]

able to gain full time employment.” (R. 7-8, PageID 1108.) Even if we were to assume that Dr.

Kumar meant to opine that Kestel may not be able to obtain full time employment, the ALJ

assigned little weight to this opinion because Dr. Kumar cited no findings of support. See

20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant evidence to support a

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Case No. 18-3371, Kestel v. Commissioner of Social Security


medical opinion, particularly medical signs and laboratory findings, the more weight we will give

that medical opinion. The better an explanation a source provides for a medical opinion, the more

weight we will give that medical opinion.”)

       Having reviewed the ALJ’s analysis and explanations under step four, and although the

record includes evidence that could support a different conclusion, we nevertheless conclude that

the ALJ provided sufficient explanations, supported with facts from the record, for his decision.

Walters, 127 F.3d at 532 (“The administrative record contains substantial evidence to support the

Commissioner’s conclusion that [the claimant] had the residual functional capacity to perform his

past relevant work . . . . That there may be substantial evidence in the record to support another

conclusion is irrelevant.”). Thus, Kestel’s RFC was supported by substantial evidence.

                                      III. CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court.




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