THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION 

Krista A. Fresquez,

Plaintiff,

v. 

Commissioner of Social Security,

Defendant.

 Case No.1:18cv114

Judge Michael R. Barrett

ORDER

This matter is before the Court on the Magistrate Judge’s January 30, 2019 Report 

and Recommendation (“R&R”) recommending that the Commissioner’s decision be 

affirmed and this matter be closed on the docket of the Court. (Doc. 13).

When objections are received to a magistrate judge's R&R on a dispositive matter, 

the assigned district judge “must determine de novo any part of the magistrate judge's 

disposition that has been properly objected to.” FED. R. CIV. P. 72(b). After that review, 

“[t]he district judge may accept, reject or modify the recommended disposition; receive 

further evidence; or return the matter to the magistrate judge with instructions.” Id. Here, 

proper notice was given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice 

that the parties would waive further appeal if they failed to file objections to the R&R in a 

timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir.1981). Plaintiff filed 

timely objections. (Doc. 14). The Magistrate Judge completed a comprehensive review of 

the record and the same will not be repeated here except to the extent necessary to 

address Plaintiff’s objections.
2

Plaintiff argues that the Magistrate Judge erred by finding that the ALJ’s failure to 

discuss Plaintiff’s Chronic Fatigue Syndrome (“CFS”) was harmless error and by relying 

on Maziarz v. Sec’y of Health & Human Servs., 847 F.2d 240 (6th Cir. 1987), to make 

that finding. (Doc. 14). Specifically, Plaintiff asserts that her CFS is a medically 

determinable impairment, the ALJ failed to classify it as such, and this failure is not

harmless error because, “even if the ALJ mentioned the impairment after step two, . . . 

the impairment was already deemed to have no impact whatsoever on [her] condition”

under the pertinent rules and regulations. (Id.).

After a de novo review of the filings in this matter, and particularly Plaintiff’s 

Statement of Specific Errors, the R&R, and Plaintiff’s objections, the Court agrees with 

the Magistrate Judge’s recommendation. The Magistrate Judge acknowledged that the 

ALJ did not list Plaintiff’s CFS diagnosis as an impairment—either a medically

determinable impairment or non-medically determinable impairment—at Step 2. (Doc. 13 

at PageID 1220). However, the Magistrate Judge found the ALJ’s failure to address 

Plaintiff’s CFS as an impairment at Step 2 to be harmless error because the ALJ 

“continued the sequential analysis through the determination of [Plaintiff]’s residual

functional capacity” and Plaintiff failed to both identify any functional limitations 

attributable to her CFS that the ALJ failed to consider and to challenge the ALJ’s adverse 

credibility determination. (Id. at PageID 1220-21) (relying on Maziarz, 847 F.2d at 244).

The Court finds Plaintiff’s argument—that “[t]his is an issue that focuses on 

medically determinable versus non-medically determinable” instead of “an issue that 

focuses on severe versus non-severe”—raises a distinction without a difference in light 

of her failure to identify any functional limitations attributable to her CFS that the ALJ failed 
3

to consider and to challenge the ALJ’s adverse credibility determination. Cf. Rouse v. 

Comm'r of Soc. Sec., No. 2:16-CV-223, 2017 WL 1102684, at *2 (S.D. Ohio Mar. 24, 

2017) (“Despite it being “better practice [for an] ALJ to say explicitly which impairments 

are found to be non-severe and which are found not to be medically determinable,” [the 

plaintiff] was nevertheless unable to show how any of the impairments the ALJ did not list 

as severe negatively affected her functioning or ability to complete the work listed in her 

RPC.”).

Moreover, although Defendant’s unopposed Motion for an Extension of Time to file 

her Memorandum in Opposition to Plaintiff’s opening brief remains pending (Doc. 11), 

Defendant requested an extension up to and including October 12, 2018 and she filed 

her Response in Opposition on that date (Doc. 12). The Court will grant Defendant’s 

Motion and deem her Response as timely.

Based on the foregoing, the Court hereby GRANTS Defendant’s Motion an 

Extension of Time (Doc. 11), ADOPTS the Magistrate Judge’s January 30, 2019 R&R

(Doc. 13), and AFFIRMS Defendant’s decision. This matter shall be CLOSED and 

TERMINATED from the Court’s docket.

IT IS SO ORDERED. _s/ Michael R. Barrett_________

Hon. Michael R. Barrett 

United States District Judge