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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JOHN J. COMER, : 

 : Case No. 2:18-cv-176 

 Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Vascura 

COMMISSIONER OF : 

SOCIAL SECURITY, : 

 : 

 Defendant. : 

ORDER 

 This matter comes before the Court on the Magistrate Judge’s December 14, 2018, 

Report and Recommendation (ECF No. 20), which recommended that Plaintiff’s Statement of 

Errors (ECF No. 14) be OVERRULED and that the Commissioner’s decision be AFFIRMED. 

This Court hereby ADOPTS the Report and Recommendation in its entirety based on an 

independent consideration of the analysis therein. 

I. BACKGROUND 

Plaintiff, John J. Comer, filed applications for disability insurance benefits (“DIB”) and 

supplemental security income (“SSI”) on October 15, 2014, alleging an onset date of his 

disability as July 18, 2013. (R. at 66). Plaintiff’s claims were denied on March 15, 2015, and 

subsequently denied upon reconsideration on May 22, 2015. (R. at 66). On June 15, 2015, 

Plaintiff submitted a request for a hearing. (R. at 66). Plaintiff, represented by counsel, appeared 

and testified before an administrative law judge (“ALJ)” at his hearing on February 22, 2017. (R. 

at 66). Additionally, a vocational expert (“VE”) appeared and testified at the hearing. (R. at 66). 

The ALJ found that, from the date of July 18, 2013 to the date of the ALJ’s decision 

issued on May 17, 2017, Plaintiff was not “disabled” under the term’s meaning in the Social 
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Security Act. (R. at 67). In his decision denying Plaintiff benefits, the ALJ followed the required 

five-step sequential analysis for disability-benefits claims. (R. at 67-69). See C.F.R. § 

416.920(a).1

 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful 

activity since July 18, 2013. (R. at 70). The ALJ noted that Plaintiff worked for brief periods of 

time, but was either terminated or quit. (R. at 70). At the second step, the ALJ found, as had a 

prior ALJ, that Plaintiff was severely impaired by lumbar and cervical disc disease and obesity. 

(R. at 70). The ALJ also found that Plaintiff was no longer severely impaired by carpal tunnel 

syndrome based on new and material evidence. (R. at 70). Finally, the ALJ found that Plaintiff 

had additional severe impairments including “bilateral lateral epicondylitis, degenerative disc 

disease of the thoracic spine, and sacroiliitis.” (R. at 70). At the third step, the ALJ found that 

Plaintiff did not have an impairment or combination of impairments that met or exceeded a listed 

                                                            

1

 Although a dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 

727, 730 (6th Cir. 2007), the five sequential steps are as follows: 

(i) At the first step, we consider your work activity, if any. If you are doing substantial 

gainful activity, we will find that you are not disabled. . . . 

(ii) At the second step, we consider the medical severity of your impairment(s). If you do 

not have a severe medically determinable physical or mental impairment that meets the 

duration requirement in § 416.909, or a combination of impairments that is severe and 

meets the duration requirement, we will find that you are not disabled. . . . 

(iii) At the third step, we also consider the medical severity of your impairment(s). If you 

have an impairment(s) that meets or equals one of our listings in appendix 1 to subpart P 

of part 404 of this chapter and meets the duration requirement, we will find that you are 

disabled. . . . 

(iv) At the fourth step, we consider our assessment of your residual functional capacity 

and your past relevant work. If you can still do your past relevant work, we will find that 

you are not disabled. . . . 

(v) At the fifth and last step, we consider our assessment of your residual functional 

capacity and your age, education, and work experience to see if you can make an 

adjustment to other work. If you can make an adjustment to other work, we will find that 

you are not disabled. If you cannot make an adjustment to other work, we will find that 

you are disabled. . . . 

20 C.F.R. § 416.920(a)(4). 
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impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 73). At the fourth step, the ALJ 

found that Plaintiff had the residual functional capacity to perform certain sedentary work as 

defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). (R. at 74-79). At the fifth and final step, the 

ALJ found that there was “other work that exists in significant numbers in the national economy” 

that Plaintiff was capable of performing with “successful adjustment.” (R. at 79-80). As such, the 

ALJ determined that Plaintiff was not “disabled” under the term’s meaning in the Social Security 

Act. (R. at 79). 

The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on 

December 29, 2017, thus holding the ALJ’s decision as the Commissioner’s final agency action. 

(R. at 1). Plaintiff then timely filed suit in federal court, alleging in his Statement of Errors that 

the ALJ erred in his step-three analysis, that the ALJ failed to properly evaluate Plaintiff’s 

assertions regarding his back pain, and that the Appeals Council erred in denying his request for 

review. (ECF No. 14). 

On December 14, 2018, the Magistrate Judge issued a Report and Recommendation 

recommending that this Court overrule Plaintiff’s Statement of Errors and affirm the decision of 

the Commissioner of Social Security. (ECF No. 20). Plaintiff subsequently objected to the 

Magistrate Judge’s Report and Recommendation with regard to the Magistrate Judge’s finding 

that the ALJ did not err in his step-two analysis or his credibility determination. (ECF No. 21). 

II. STANDARD OF REVIEW 

Upon objection to a magistrate judge’s report and recommendation, this Court must 

“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 Fed. R. Civ. P. 72(b). 

This de novo review, in turn, requires the Court to “determine whether the record as a whole 
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contains substantial evidence to support the ALJ’s decision” and to “determine whether the ALJ 

applied the correct legal criteria.” Inman v. Astrue, 920 F. Supp. 2d 861, 863 (S.D. Ohio 2013). 

Substantial evidence means relevant evidence that “a reasonable mind might accept as adequate 

to support a conclusion.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) 

(quotation omitted). Substantial evidence constitutes “more than a mere scintilla, but only so 

much as would be required to prevent judgment as a matter of law against the Commissioner if 

this case were being tried to a jury.” Inman, 920 F. Supp. 2d at 863 (citing Foster v. Bowen, 

853 F.2d 483, 486 (6th Cir. 1988)). 

III. LAW AND ANALYSIS 

A. Step-Two Determination 

Plaintiff objects to the Magistrate Judge’s finding that the ALJ sufficiently articulated his 

reasons for determining that Plaintiff’s depression and anxiety did not constitute severe 

impairments under step two. (ECF No. 21). Step two of the five-step sequential evaluation of 

evidence for disability claims requires an ALJ to determine whether the claimant suffers from 

one or more severe impairments. See 20 C.F.R. § 416.920(a)(4). A severe impairment is defined 

as “any impairment or combination of impairments which significantly limits [a claimant’s] 

physical or mental ability to do basic work activities” and “which has lasted or can be expected 

to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1520(c), 

416.920(c); 42 U.S.C. § 423(d)(1)(A). A claimant can establish a severe mental impairment 

through “medical evidence consisting of signs, symptoms, and laboratory findings, not only by [a 

claimant’s] statement of symptoms.” Griffith v. Comm’r of Soc. Sec., 582 Fed. App’x 555, 559 

(6th Cir. 2014). Moreover, a claimant bears the burden of establishing a severe impairment by 

medical evidence. Id.
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After determining whether a claimant has shown a severe impairment, “an ALJ must 

include a discussion of ‘findings and conclusions, and the reasons or basis therefor, on all the 

material issues of fact, law, or discretion presented on the record.’” Reynolds v. Comm’r Soc. 

Sec., No. 09-2060, 2011 WL 1228165, at *2 (6th Cir. Apr. 1, 2011) (quoting 5 U.S.C. § 

557(c)(3)(A)). This explanation is “necessary in order to facilitate effective and meaningful 

judicial review.” Id.

Here, Plaintiff asserts that the Magistrate Judge erred in finding that the ALJ sufficiently 

articulated his bases for declining to find that Plaintiff suffered from severe mental impairments 

of depression and anxiety. (ECF No. 21 at 2). The ALJ found that Plaintiff’s “mental 

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

than minimal limitation in the claimant’s ability to perform basic mental work activities and are 

therefore nonsevere.” (R. at 71). In denying Plaintiff’s claim that his anxiety and depression 

constitute a severe impairment, the ALJ provided the following explanation: 

The prior ALJ decision found that [Plaintiff’s] mental impairments were nonsevere, with no more than mild limitations. New evidence is not material, as it 

does not warrant deviating from this finding. [Plaintiff’s] mental conditions have 

remained stable since the prior ALJ decision, as analyzed here. This finding is 

also consistent with the State agency psychological consultants’ mental 

assessments, which adopted the prior ALJ decision in this regard. The 

undersigned gives great weight to the State agency psychological consultants’ 

mental assessments, as these are consistent and well supported by the evidence. 

Evidence after the consultants rendered their assessments does not support greater 

limitation. 

(R. at 72) (internal citations to the record omitted). 

To reach this conclusion, the ALJ considered the four broad areas of mental functioning 

as set forth in the regulations for evaluating mental impairments: (1) understanding, 

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

or maintaining pace; and (4) adapting or managing oneself. (R. at 71). According to the ALJ, 
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based on these factors, any of Plaintiff’s limitations as a result of his depression and anxiety were 

mild. (R. at 71). The ALJ additionally considered the medical sources submitted by Plaintiff, 

which indicated that Plaintiff had received treatment and his symptoms were relatively stable 

with medication. (R. at 71). In fact, his medical sources “consistently noted that [Plaintiff] was 

doing reasonably well.” (R. at 71). 

As the Magistrate Judge concluded, the ALJ offered a sufficient explanation for reaching 

his decision. (ECF No. 20 at 7). Indeed, the ALJ followed the appropriate method of analysis for 

mental impairments and explained the evidence and reasons upon which his decision was based. 

(R. at 71-72). Plaintiff does not assert any particular evidence that the ALJ failed to consider nor 

does Plaintiff allege that the ALJ’s determination lacked support in the record. 

 Therefore, the Magistrate Judge did not err in finding that the ALJ offered a sufficient 

explanation for his decision under step two in determining that Plaintiff’s depression and anxiety 

did not constitute severe impairments. 

B. Credibility Determination 

Plaintiff also objects to the Magistrate Judge’s finding that substantial evidence supported 

the ALJ’s credibility determination. (ECF No. 21 at 2). Under SSR 96-7p, an ALJ is required to 

consider the overall credibility of a plaintiff’s statements to determine whether a claimant’s 

symptoms affect his ability to perform work-related activities. SSR 96-7p, 1996 WL 374186 

(July 2, 1996). However, SSR 16-3p supersedes SSR 96-7p, and requires an ALJ to “evaluate 

statements regarding the intensity, persistence, and limiting effects of symptoms in disability 

claims.” SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). Under SSR 16-3p, ALJs are directed to 

focus on the “consistency of the individual’s own statements,” rather than overall credibility or 

character for truthfulness. Id. at 8-11. This ensures that an ALJ will consider whether a 
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claimant’s symptoms have “worsen[ed] or improve[d] with time” and any “attempts to seek 

medical treatment.” Id. at 9. Still, SSR 16-3p was intended to clarify SSR 96-7p and not 

“substantially change” the rules and procedure for an ALJ’s credibility assessment. Brothers v. 

Berryhill, No. 5:16-cv-01942, 2017 WL 2912535, at *9 (N.D. Ohio June 22, 2017) (emphasis in 

original). 

Therefore, under SSR 96-7p, and SSR 16-3p, an ALJ must conduct a two-part analysis to 

evaluate a claimant’s symptoms. Id. at 11. This two-part analysis proceeds as follows: 

First, the ALJ will ask whether there is an underlying medically determinable 

physical impairment that could reasonably be expected to produce the claimant’s 

symptoms. 20 C.F.R. § 416.929(a). Second, if the ALJ finds that such an 

impairment exists, then he must evaluate the intensity, persistence, and limiting 

effects of the symptoms on the individual’s ability to do basic work activities. Id.

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). 

While a claimant’s credibility determination is within the discretion of an ALJ, the ALJ’s 

determination “must be reasonable and supported by evidence in the case record.” Brothers, 

2017 WL 2912535, at *11 (citing Rogers, 486 F.3d at 249). The ALJ must make more than “a 

single, conclusory statement that ‘the individual’s allegations have been considered’ or that ‘the 

allegations are (or are not) credible.’” Id. (citing SSR 96-7p, 1996 WL 374186 at *2). Indeed, the 

ALJ’s “decision must contain specific reasons for the finding on credibility, supported by the 

evidence in the case record, and must be sufficiently specific to make clear to the individual and 

to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and 

the reasons for that weight.” Id. (emphasis in original) (citing SSR 96-7p, 1996 WL 374186 at 

*2). The ALJ’s determination, moreover, is given deference and the “substantial-evidence 

standard is met if a ‘reasonable mind might accept the relevant evidence as adequate to support a 
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conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009). This standard 

essentially gives an ALJ a “zone of choice,” as long as the choice is reasonable. Id.

Here, the ALJ determined that the degree of limitation asserted by Plaintiff as a result of 

his degenerative disc disease and radiculopathy was not consistent with the evidence. (R. at 74-

75). First, the ALJ determined that Plaintiff did indeed have “medically determinable 

impairments that could reasonably cause some symptoms and limitations.” (R. at 78-79). 

However, Plaintiff failed under the second prong. (R. at 78-79). The ALJ determined that the 

intensity, persistence, and limiting effects of Plaintiff’s symptoms were inconsistent with 

Plaintiff’s asserted limitations. (R. at 78-79). The ALJ reached this conclusion after reviewing 

the Plaintiff’s objective medical record, Plaintiff’s description of his daily activities, the nature 

and effectiveness of medical treatment, and the opinion of a medical doctor. (R. at 74-78). The 

ALJ also used more than five pages to express his conclusion detailing the specific reasons for 

his finding and citing the evidence that supported his decision with sufficient specificity. (R. at 

74-79). Contrary to Plaintiff’s assertion, the ALJ’s analysis and reasoning provided was 

thorough. The ALJ’s decision also met the substantial-evidence standard; a reasonable mind 

could similarly have found the relevant evidence to support the same conclusion. According to 

the ALJ, although Plaintiff had chronic pain, difficulty with fine manipulation, and a need to 

alternate between walking and standing every 10-15 minutes, Plaintiff was not as limited as he 

alleged and “the record also reveal[ed] that the treatment [had] been generally successful in 

controlling those symptoms.” (R. at 74-75). 

As such, the Magistrate Judge did not err in finding that substantial evidence supported 

the ALJ’s credibility determination that Plaintiff was not limited to the extent he alleged as a 

result of his degenerative disc disease and radiculopathy. (ECF No. 20 at 13). 
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IV. CONCLUSION 

For the reasons set forth above, Plaintiff’s Objections to the Magistrate Judge’s Report 

and Recommendation are OVERRULED. The Court hereby ADOPTS the Magistrate Judge’s 

Report and Recommendation. This action is hereby DISMISSED. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

DATED: June 3, 2019