Lovasz v. Commissioner of Social Security

Filing 12

Memorandum Opinion and Order. The Court AFFIRMS the Commissioner's decision. Signed by Magistrate Judge Amanda M. Knapp on 9/24/2024. (Related document 1 ) (S,S)

9IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CASE NO. 1:23-CV-309-AMK

MARK A. LOVASZ,
Plaintiff,

MAGISTRATE JUDGE AMANDA M. KNAPP

vs.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Plaintiff Mark A. Lovasz (“Plaintiff” or “Mr. Lovasz”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security (“Commissioner”) denying his
application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”). (ECF Doc. 1.) This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter
is before the undersigned by consent of the parties under 28 U.S.C. § 636(c) and Fed. R. Civ. P.
73. (ECF Doc. 8.) For the reasons set forth below, the Court AFFIRMS the Commissioner’s
decision.
I.

Procedural History

Mr. Lovasz filed his DIB and SSI applications on March 29, 2020, alleging a disability
onset date of December 15, 2019. (Tr. 61.) He asserted disability due to neuropathy in feet,
frozen shoulder LT RT, RT hand issues with motor skills, body swelling causes pain, diabetes
type 2, memory problems, fatigue, pain. (Tr. 249, 259.) Mr. Lovasz’s application was denied at
the initial level September 28, 2020 (Tr. 290-99) and at the reconsideration level on January 4,
2021 (Tr. 302-09). He then requested a hearing before an Administrative Law Judge (“ALJ”).
1

(Tr. 311.) A telephonic hearing was held before an ALJ on January 6, 2022. (Tr. 61, 85-125.)
The ALJ issued an unfavorable opinion on January 27, 2022. (Tr. 58, 63, 79.)
Mr. Lovasz’s request for review of the decision by the Appeals Council was denied on
December 14, 2022 (Tr. 1-7), making the ALJ’s decision the final decision of the Commissioner.
Mr. Lovasz filed his Complaint seeking judicial review on February 16, 2023. (ECF Doc. 1.)
The case is fully briefed and ripe for review. (ECF Docs. 8, 10, 11.)
II.
A.

Evidence

Personal, Educational, and Vocational Evidence
Mr. Lovasz was born in 1980 and was 39 years old on the alleged disability onset date,

making him a younger individual under Social Security regulations. (Tr. 78.) He had at least a
high school education. (Id.) Mr. Lovasz has not engaged in substantial gainful activity since the
alleged onset date. (Tr. 63.)
B.

Medical Evidence
Although the ALJ identified numerous physical and mental impairments (Tr. 64), Mr.

Lovasz focuses his argument on a January 2021 “Off-Task / Absenteeism Questionnaire” where
the medical opinion was explicitly based on Mr. Lovasz’s diabetic neuropathy, post-concussion
syndrome, foot pain, and medication side effects (see ECF Doc. 8; Tr. 1401). The evidence
summarized herein is therefore focused on the evidence relevant to the conditions that formed
the basis for that January 2021 medical opinion.
1.

Relevant Treatment History

Mr. Lovasz saw his primary care provider Stephen Archacki, M.D., Ph.D., on August 2,
2019, regarding a right foot injury that he sustained three days prior while jogging. (Tr. 1240.)
An x-ray of his right foot revealed a fracture of the right fifth metatarsal. (Tr. 1241, 1244.)

2

On December 13, 2019, Mr. Lovasz saw Dr. Archacki for a diabetes checkup. (Tr. 1258).
He reported that he suffered from neuropathy, noting it could get “very bad.” (Id.) He also
relayed that he had tried working less and was “even offered disability but turned it down.” (Id.)
On physical examination, he was in no acute distress and had no deformities, ulcers, or calluses
on his feet. (Tr. 1258, 1260). Dr. Archacki’s diagnoses included hypertension (controlled),
hypercholesterolemia, diabetes (controlled), and anxiety with depression. (Tr. 1260.)
On December 17, 2019, Mr. Lovasz presented to podiatrist Timothy J. Levar DPM, for
re-evaluation of a Jones fracture of the fifth metatarsal of his right foot, which he had injured
while jogging in August. (Tr. 648.) He had been wearing a fracture boot and using an external
bone stimulator since fracturing his right foot in August, but complained of significant pain in his
foot; the pain was daily and constant with standing and walking. (Id.) His physical examination
revealed edema in his right foot, absent protective sensation to the left and right hallux, and
diminished vibratory sensation at the hallux IPJ. (Tr. 649.) His motor strength and range of
motion were normal, but he demonstrated localized pain over the proximal fifth metatarsal. (Id.)
X-rays of his right foot revealed a fracture of the fifth metatarsal with non-union, including
sclerotic fracture margins. (Id.) Mr. Lovasz and Dr. Levar discussed potential risks of surgery,
with additional risk due to his history of diabetes and neuropathy, but agreed that surgical
intervention was necessary. (Tr. 650.)
On January 8, 2020, Dr. Levar performed an underwent an open reduction, internal
fixation (ORIF) a fifth metatarsal fracture with non-union on his right foot. (Tr. 635-37.) At a
January 21, 2020 post-operative follow-up, Mr. Lovasz reported that he was doing well, had no
acute complaints, and that his pain was well controlled. (Tr. 630.) On neurological examination,
his sensation was grossly intact and his motor strength was preserved. (Tr. 631.)

3

On April 30, 2020, Mr. Lovasz initiated care with neurologist Joshua J. Sunshine, M.D.,
for treatment of neuropathy; he also complained of memory loss following a concussion. (Tr.
828.) As to neuropathy, Mr. Lovasz explained that he experienced an electrical shock at work in
2016, after which he lost feeling in his feet and had limited movement in his hands; prior to that,
he had some mild neuropathy. (Id.) As to memory loss, he said he had a concussion in March
2017, after which he suffered short term memory loss, trouble containing his emotions, and
confusion. (Id.) On examination, Mr. Lovasz was alert and oriented, with normal cortical
functions and speech. (Tr. 829.) His strength was normal in all extremities, but he had reduced
pinprick sensation up to his mid calves and mid forearms bilaterally. (Id.) He ambulated with a
boot due to the right foot fracture. (Id.) Dr. Sunshine ordered a brain MRI, lab work, and EEG
imaging to address concussion and memory loss; he also planned to do NeuroTrax testing. (Tr.
829-30.) For polyneuropathy, Dr. Sunshine ordered lab work and a cervical spine MRI; he also
continued Mr. Lovasz’s existing medications. (Id.)
The May 7, 2020 EEG was within normal limits (Tr. 604) and the May 27, 2020 brain
MRI revealed inconsequential incidental findings without evidence of new or acute intracranial
pathology (Tr. 708-09).
On May 11, 2020, Mr. Lovasz underwent computerized NeuroTrax cognitive testing.
(Tr. 827, 1345-51.) The BrainCare Data Report recorded: a global cognitive score of 56.3; a
memory score of 65; an executive functioning (thinking) score of 62.1; an attention score of
49.9; a visual spatial score of 85.6; a verbal function score of 25; a problem solving score 38.3;
and a working memory score of 67.9. (Tr. 827, 1346-48.) The Report stated that the “scores are
standardized relative to cognitively healthy individuals of similar age and educational level” with
a mean of 100 and a standard deviation of 15 (Tr. 1345), but contained the following disclaimer:

4

The information provided by NeuroTraxTM on the basis of cognitive testing is of a
general nature and is not medical advice, a diagnosis, or treatment. The
NeuroTraxTM Data Report does not constitute the practice of medicine,
neuropsychology or the provision of professional health care advice. The Data
Report is designed to provide information relating to brain wellness and is not
intended to replace evaluation by a qualified medical professional, nor is it intended
as the basis for medical diagnosis or treatment.
(Tr. 1350.) Dr. Sunshine reviewed the results and found that they “revealed[] impairment[s]
with [] working memory, memory, global cognitive score, [and] attention.” (Tr. 827.) His plan
was to “discuss at follow up.” (Tr. 827.)
Mr. Lovasz followed up with Dr. Sunshine on June 15, 2020, for concussion, memory
loss, and weakness. (Tr. 831-33.) He reported the following symptoms: headache, numbness or
tingling, muscle weakness, loss of consciousness, memory or thinking problems, and trouble
with walking or balance. (Tr. 831.) He also noted difficulty performing the following activities
of daily living: bathing, driving, cleaning, and shopping. (Id.) On examination, he was alert and
oriented with normal cortical functions and speech. (Tr. 832.) He also had normal strength in all
extremities, his sensory function was “normal to all modalities,” and his reflexes were
symmetric. (Id.) Coordination and gait were also normal. (Id.) Dr. Sunshine prescribed
Pamelor for insomnia and ordered EMG/NCV imaging of the right upper and lower extremities
for the discomfort in his feet. (Id.) There is no notation of a discussion of the NeuroTrax test
results, or further discussion of complaints of memory loss or concussion, but the record notes
that the NeuroTrax report is in “edocs” with the EEG, MRI, and lab reports. (Tr. 831.)
On June 25, 2020, Mr. Lovasz underwent a rehabilitation and sports therapy physical
therapy evaluation at Regional Hillcrest—Cleveland Clinic. (Tr. 1211.) He reported unsteady
gait and a history of diabetic neuropathy that worsened after being electrocuted in 2017. (Tr.
1212.) He also reported right shoulder pain, decreased right upper extremity strength, and
decreased balance. (Id.) Four to eight sessions of physical therapy were recommended. (Id.)
5

At a July 13, 2020 post-surgical follow-up, Mr. Lovasz was six months post ORIF
surgery. (Tr. 865.) He stated he was doing well and had no acute complaints, was back to full
activity, and was wearing supportive shoes. (Id.) He noted occasional pain in his foot at times
with “prolonged activity.” (Id.) On examination, he was alert, oriented, and in no acute distress
(Tr. 866). He exhibited full strength in all areas. (Id.) At another follow-up in August 2020, Mr.
Lovasz said he was doing well with no acute complaints and no pain. (Tr. 1298.) On
examination, he was in no acute distress and displayed full strength in all areas. (Tr. 1299.)
Mr. Lovasz saw podiatrist Dr. Levar on September 28, 2020, and reported no right foot
pain when wearing his fracture boot. (Tr. 1303.) A CT of the right foot was performed on
November 2, 2020. (Tr. 1310.) Ten months after his ORIF surgery, he continued to have a
nondisplaced transverse right proximal fifth metatarsal fracture with only focal bony bridging,
persistent fracture plane remained across much of the metatarsal shaft, broken central portion of
the screw-plate plate, and possible split tear of the peroneous brevis tendon. (Tr. 1310-11.)
On October 13, 2020, Mr. Lovasz underwent NCV/EMG testing of the right upper and
right lower extremities with comparative nerve conduction studies of the left lower extremity.
(Tr. 1356.) Testing revealed mild motor sensory peripheral neuropathy. (Id.) Mr. Lovasz saw
Dr. Sunshine the same day for a post-EMG follow-up. (Tr. 1323.) He reported burning in his
feet for the previous 10 years, with the right being worse than the left. (Id.) The EMG revealed
“some evidence of reduced responses in the right lower extremity compared to the left.” (Id.)
On examination, Mr. Lovasz was alert and oriented and in no acute distress. (Id.) Cortical
functions were normal. (Id.) He exhibited normal strength in all extremities, normal sensory
function, and a normal gait. (Id.) Dr. Sunshine provided education on maintaining a healthy
lifestyle and recommended follow up in three months. (Tr. 1324.)

6

On October 26, 2020, Mr. Lovasz underwent a 65-hour ambulatory EEG with video,
referred by Dr. Sunshine because of “burning [pain] in both feet for past ten years.” (Tr. 1383.)
Kristen Smith, M.D., read the results, describing them as normal with no epileptiform discharges,
EEG seizures, or lateralizing signs. (Id.)
At a December 8, 2020 virtual appointment with Dr. Sunshine, Mr. Lovasz complained of
continued memory issues. (Tr. 1366.) He also complained of feeling lightheaded when he got
up, noting that he was diabetic and drank 18 oz. of Gatorade daily, and complained that taking
Pamelor at night was keeping him up. (Id.) Dr. Sunshine recommended evaluation at the Brain
Health Center for memory loss, noted that Mr. Lovasz “may have diabetic neuropathy,” indicated
that he would have Mr. Lovasz take Pamelor during the day to see if that helped, and noted that
Mr. Lovasz would increase Gatorade for lightheadedness. (Id.)
Mr. Lovasz had a regular check-up with Dr. Archacki on December 15, 2020, where he
reported “not good” blood sugar levels when he tested at home, fair control of his neuropathy,
and continuing memory loss. (Tr. 1415.) Physical examination findings were unremarkable but
Dr. Archacki noted that he was nervous and anxious. (Tr. 1417.) Mr. Lovasz’s bloodwork
revealed an elevated A1C of 6.9, which was indicative of an increased risk for diabetes. (Tr.
1424.) Dr. Archacki noted that lifestyle changes would be beneficial. (Id.)
Mr. Lovasz attended another virtual appointment with Dr. Sunshine on January 25, 2021,
for follow up regarding memory loss. (Tr. 1398.) He noted continued memory issues or
forgetfulness, like putting the food in the closet rather than the refrigerator and forgetting some
cousins’ names, and also reported two concussions in the past two years. (Id.) He had not had a
sleep study; he called but never got a call back. (Id.) Dr. Sunshine noted that the brain MRI and
bloodwork were okay, and that Mr. Lovasz would be seeing a doctor at the Brain Health Center

7

at University Hospitals. (Id.) Dr. Sunshine remarked that the etiology of Mr. Lovasz’s memory
loss was not clear but wondered if it could be “a combination of concussions and possibly sleep
apnea.” (Id.) He indicated that he would resend a sleep study referral. (Id.)
Mr. Lovasz returned for an in-person examination with Dr. Sunshine on May 20, 2021,
for follow up regarding his memory. (Tr. 1406-07.) He reported that he had not been able to
schedule the sleep study, but “would still like to complete the testing if Dr. Sunshine fe[lt] it
[wa]s appropriate.” (Tr. 1406.) He noted that he was not tired and did not snore, felt “his
memory ha[d] improved,” and was “not mixing things up as much.” (Id.) He still had to ice and
stretch his feet for an hour, but was doing better overall “from a cognitive standpoint.” (Id.) On
examination, he was alert and oriented, his cortical functions and speech were normal, and he
exhibited normal strength in all extremities, normal sensory function, normal coordination, and
normal gait and station. (Tr. 1406-07.) As to memory loss, Dr. Sunshine indicated that he would
hold off on the sleep study as Mr. Lovasz was “doing much better” and was “cognitively
improving.” (Tr. 1407.) He noted that Mr. Lovasz would be spending some time in Germany
with his girlfriend in the winter, but would return in October or November before he left. (Id.)
At a June 29, 2021 examination with Dr. Archacki, Mr. Lovasz was alert and oriented,
had no sensory deficits, and had normal coordination. (Tr. 1548.) Dr. Archacki described Mr.
Lovasz’s diabetes as stable and noted that he filled out disability paperwork. (Tr. 1546, 1548.)
On November 11, 2021, Mr. Lovasz presented to the Cleveland Clinic Neurological
Institute for further evaluation of memory issues, attending a new patient evaluation with
Carolyn Goldschmidt, D.O. (Tr. 1611-17.) He complained of memory issues starting 2.5 years
before, noting that he had a terrible short-term memory and was not able to retain information,
but had good long term memory. (Tr. 1611.) He first noticed the issue during an online training

8

course for work. (Id.) He could not multitask, put frozen food in the cabinet, and lost rent
money. (Id.) He reported that Dr. Sunshine gave him a memory test, and that he did poorly on
the test. (Tr. 1611-12.) He also reported that his doctors tried to decrease his gabapentin and
venlafaxine to improve memory, but his neuropathic pain increased too much with no
improvement in his memory. (Id.) He was alert and oriented on examination, with normal
affect, language, attention, concentration, recent and remote memory, praxis, and intellectual
function. (Tr. 1614.) His score on the Montreal Cognitive Assessment (“MoCA”) was 27/30,
suggestive of no cognitive impairment. (Id.) He also had full strength and normal coordination
and gait on examination, with intact sensory perception to touch, but his standing balance and
tandem walking were impaired and his sensory perception to vibration was diminished in the
lower extremities. (Tr. 1615-16.) Dr. Goldschmidt noted that Mr. Lovasz’s MoCA was “within
normal range” but observed that the test was “probably not detecting the specific dysfunction that
he has, which seems more of a processing speed/multi-tasking issue.” (Tr. 1617.) She therefore
recommended formal neurocognitive testing “to get a better handle on his specific impairments,
in order to improve functioning,” to be followed by cognitive therapy. (Id.) Mr. Lovasz was
instructed to follow up in six months. (Id.)
Mr. Lovasz attended a cognitive linguistic evaluation with speech language pathologist
Marypatricia Honn, CCC-SLP at the Cleveland Clinic, on December 13, 2021. (Tr. 1580).
Testing revealed a mild impairment in Mr. Lovasz’s spoken language comprehension, spoken
language expression, attention, memory, and problem solving. (Tr. 1580-81). He was described
as having “mild impairment” in the areas of spoken language comprehension, spoken language
expression, attention, memory, and problem solving. (Tr. 1580.) His prognosis was “good,” and
SLP Honn recommended outpatient speech therapy and a home exercise program. (Id.)

9

2.

Function Report

In an August 2020 function report, in response to the question of how his impairments
prevented him from working, Mr. Lovasz asserted that he had “no feeling in [his] feet,” which
caused balance issues. (Tr. 404.) He said he experienced numbness when sitting and that he
could not lift anything over five pounds. (Id.) Mr. Lovasz also described cognitive issues with
respect to reading, understanding, and short-term memory loss. (Id.) He said he spent about 18
hours a day in bed. (Tr. 405). He asserted that his impairments caused difficulties in the
following areas of functioning: lifting, squatting, bending, standing, reaching, walking, sitting,
kneeling, talking, stair climbing, memory, completing tasks, concentration, understanding,
following instructions, and using his hands. (Tr. 409.)
Mr. Lovasz described cognitive issues with reading and understanding, and short term
memory loss that made him unable to “remember what someone just said.” (Tr. 404.) He could
not pay attention because he would “drift in and out of anything I try to do.” (Tr. 409.) On an
average day, he made breakfast, was in bed around 18 hours per day, iced his feet twice per day,
did at-home rehabilitation stretches, and used a bone stimulator. (Tr. 405). Pain kept him up at
night, but personal care was not a problem. (Id.) He cooked on a Foreman grill, microwaved for
food prep, and cooked for three days at a time. (Tr. 406.) His brother and mother helped him
clean because his motion was too limited; he could not move around well enough to scrub or
wipe. (Tr. 406-07.) He shopped on the internet once every two weeks for about 20 minutes.
(Tr. 407.) He could pay bills, count change, handle a savings account, and use a checkbook.
(Id.) He set alarms to remind him to attend to grooming and take his medicine. (Tr. 406.)
His hobbies and interests included attending races, walking, playing basketball and
camping, but he said that he was using a walker to walk and could not do the rest because he was

10

too weak. (Tr. 408.) He went on Facebook daily to socialize, but had not been out with people
since March; he was not comfortable going out alone and said he “no longer socialize[d] or
[went] out.” (Tr. 408-09.) He reported that he did not finish what he started (e.g., a
conversation, chores, reading, watching a movie), and could not follow written or spoken
instructions due to memory and comprehension issues. (Tr. 409.)
3.

Opinion Evidence
i.

Consultative Examination

On September 9, 2020, Mr. Lovasz participated in a consultative psychological
examination via the doxy.me telehealth platform with Regina McKinney, Psy.D. (Tr. 1289-94.)
The examination consisted of a clinical interview, with no medical records reviewed. (Tr. 1290.)
No psychological testing was requested or conducted. (Tr. 1292.)
When asked about the nature of his disability, Mr. Lovasz stated he was electrocuted four
years prior and had a “plethora of issues since then,” including operations on both shoulders,
multiple concussions, no feeling in his foot, and breaking his foot. (Tr. 1291.) He reported that
he had recently taken cognitive tests and “didn’t do very well on that.” (Id.) He expressed
concerns about work limitations, including standing or sitting for extended periods, tiredness and
fatigue, maintaining pace, attending consistently to work duties, and concentrating. (Tr. 1291.)
As to his mental health, Mr. Lovasz was receiving medication services from his primary
care provider, but was not being treated by mental health professionals. (Tr. 1291.) He took
venlafaxine (Effexor), but was not sure if it was beneficial. (Id.) He complained of depressive
symptoms, low motivation, irritability, poor concentration, and social withdrawal. (Id.)
In terms of daily activities, Mr. Lovasz said he could attend to grooming and hygiene
without difficulty, but had difficulty completing chores and preparing meals due to problems

11

with his physical functioning and motivation. (Tr. 1291). He could pay bills and had regular
contact with family. (Id.) He also watched television and read. (Id.)
On examination, his grooming and hygiene appeared adequate and he did not appear to
be in physical discomfort, but he was only partially visible and there were technology limitations.
(Tr. 1291-92.) He was cooperative, with an adequate level of understanding and consistent eye
contact. (Id.) He was able ot track the conversation without significant difficulty and his speech
was within normal limits. (Tr. 1292.) He presented as depressed with a flattened affect, and
displayed limited energy to complete the evaluation process, appearing tired. (Id.) But he was
alert, responsive, and fully oriented, and recalled personal historic information without difficulty.
(Id.) His level of intellectual functioning appeared to fall within normal limits. (Id.)
Dr. McKinney diagnosed Mr. Lovasz with major depressive disorder and unspecified
trauma related disorder (Tr. 1293), and offered the following functional assessment:
•

Understanding, carrying out, and remembering instructions: “[His] performance on a
brief word reasoning task was not suggestive of difficulty understanding instructions.
His performance on a brief short term memory task was suggestive of difficulty
remembering instructions. He did not have difficulty understanding and responding to
questions posed during the examination today. He did not report problems learning
work tasks.” (id.);

•

Sustaining concentration and persisting in work-related activities: “[He] was able to
follow the conversation during the interview and did not ask for regular repetition of
questions. He had difficulty completing tasks assessing attention during the
evaluation which suggests difficulty with concentration and focus. His level of energy
was below average today and problems with motivation completing basic tasks of
daily living were noted. He reported a history of problems with concentration in work
settings which negatively affected completion of work duties.” (id.);

•

Social interaction with supervisors, coworkers, and the public: “[He] presented as
depressed which may impact interpersonal interaction in work settings including
limited or negative social interaction. He reported problems with anxiety which
contributed to social avoidance. He did not present with intellectual limitations which
would impact his ability to understand and respond to supervisory feedback. He did
not report significant problems with social interaction in work settings.” (Tr. 129394); and
12

•

Dealing with normal pressures in a work setting: “[He] presented as emotionally
overwhelmed when discussing current pressures which may impact his mood stability
in a competitive work setting. He reported problems managing pressure in daily
activities which has contributed to avoidance completing daily tasks. His presentation
was not indicative of intellectual or cognitive limitations which would impact his
ability to manage normal work pressures. He did not describe a history of difficulty
managing normal pressure in work settings.” (Tr. 1294).
ii.

State Agency Medical Consultants

Upon initial review, on August 12, 2020, state agency medical consultant Abraham
Mikalov, M.D., completed a physical RFC assessment opining that Mr. Lovasz could: perform
light work; frequently climb ramps / stairs, stoop, kneel, crouch, and crawl; and occasionally
climb ladders / ropes / scaffolds. (Tr. 263-65.) He should also avoid all exposure to hazards
such as dangerous/heavy machinery, commercial driving, and unprotected heights. (Tr. 264.)
Upon reconsideration, on January 2, 2021, state agency psychological consultant Leslie
Green, M.D., agreed with Dr. Mikalov’s opinion, except that she added the following additional
limitations: never climb ladders / ropes / scaffolds; and avoid concentrated exposure to extreme
heat, extreme cold, and vibration. (Tr. 273-74.)
iii.

State Agency Psychological Consultants

Upon initial review, on September 27, 2020, state agency psychological consultant
Jennifer Whatley, Ph.D., completed a Psychiatric Review Technique (“PRT”) (Tr. 262-63) and
Mental RFC Assessment (Tr. 265-66). In the PRT, Dr. Whatley found that Mr. Lovasz had
moderate limitations in: understanding, remembering, or applying information; interacting with
others; concentrating, persisting, or maintaining pace; and adapting or managing himself. (Tr.
262.) In the mental RFC, Dr. Whatley opined that Mr. Lovasz could: remember and understand
1-2 step repetitive instructions; carry-out and maintain pace to complete 1-2 step repetitive tasks;
interact superficially in the workplace; and work in a routine environment where changes are
explained in advance. (Tr. 265-66.) Dr. Whatley further explained that Mr. Lovasz required
13

repetitive or short cycle work, and “should avoid variety of work, close tolerances, set limits, and
standards, and dealing with people beyond just getting instructions.” (Tr. 266.)
Upon reconsideration, on December 31, 2020, state agency psychological consultant
Arcelis Rivera, Psy.D., agreed with Dr. Whatley’s PRT (Tr. 271-72) and RFC (Tr. 274-76).
iv.

Treating Provider

Physician Statements
Mr. Lovasz’s primary care provider, Dr. Archacki, completed an Attending Physician
Statement on May 29, 2020. 1 (Tr. 608-09.) In it, he noted diagnoses of neuropathy in feet,
memory loss, and shoulder pain. (Tr. 608.) Subjective symptoms included chronic pain,
memory loss, and degenerative joint disease. (Tr. 609.) Dr. Archacki opined the claimant could
never sit, stand, walk, bend, stoop, climb, squat, reach above shoulder, or drive. (Id.)
Dr. Archacki completed a subsequent Physician Statement about seven months later, on
December 15, 2020. (Tr. 1395-96.) He noted diagnoses of neuropathy, syncope, and bilateral
foot fractures, and noted that labs confirmed diabetes. (Tr. 1395.) The only subjective symptom
noted was pain. (Id.) Dr. Archacki opined that Mr. Lovasz was homebound, and could never
bend, stoop, climb, squat, reach above shoulder, or drive. (Tr. 1396.) He also indicated that
there was a cognitive deficit that impaired functional capacity: short-term memory loss. (Id.)
Dr. Archacki did not expect Mr. Lovasz’s condition to improve in the future. (Id.)
Off-Task/Absenteeism Questionnaire
Dr. Archacki completed an “Off-Task / Absenteeism Questionnaire” generated by the
office of Mr. Lovasz’s attorney on January 27, 2021. (Tr. 1400-01.) Dr. Archacki checked
“Yes” in response to a question asking whether Mr. Lovasz was likely to be off task at least 20%

1

As the ALJ acknowledged (Tr. 74), this opinion is hard to read because of the low-quality photocopy in the record.

14

of the time. (Tr. 1401.) He then provided hand-written responses to several specific inquiries
regarding the bases for this opinion, as follows:
•

Underlying mental or physical impairment(s)s established by objective and clinical
findings: Diabetic Neuropathy;

•

Inability to concentrate, pay attention and/or focus on a sustained basis: Post
concussion Syndrome;

•

Pain (location of pain): feet;

•

Drowsiness and/or need to lie down and rest or sleep: may be random;

•

Side effects of medications: Sedation;

•

Other reason(s): Please send notes on vocation rehab that you may have advised to
assess abilities.

(Tr. 1401 (hand-written language in italics).) Dr. Archacki also checked boxes indicating that
Mr. Lovasz’s impairments or treatment would cause him to be absent from work about four times
per month, and that the severity of his limitations existed since December 15, 2019. (Id.)
4.

Hearing Testimony
i.

Plaintiff’s Testimony

Mr. Lovasz appeared for a telephonic hearing on January 22, 2022 (Tr. 85-124), where he
was represented by counsel (Tr. 88). Mr. Lovasz had a driver’s license and said he drove about
once a week, usually a short trip of 15-20 minutes to the store, and did not drive at night. (Tr.
91.) He drove sparingly due to neuropathy in his feet. (Id.) He reported struggling with word
finding, also known as anomia. (Tr. 97.) He felt like everything was moving in slow motion
when he tried to speak, and struggled to remember what he was told during a conversation. (Tr.
98.) Those issues affected his ability to perform his last job as a salesclerk at Verizon. (Tr. 9899.) He also lost things, like money his brother gave him to pay his rent. (Tr. 99.)

15

Mr. Lovasz dealt with either pain and swelling or loss of feeling in his feet daily. (Tr.
99.) That made it difficult to stand and balance. (Id.) He originally broke his foot due to loss of
balance. (Tr. 100.) His foot fracture was not fully healed after two years due to a lack of blood
flow in his feet. (Id.) He iced his feet twice per day and spent most of the day in his bed with his
feet elevated to try to control the swelling. (Tr. 100-01.) He also elevated his feet to counteract
numbness and tingling. (Id.) Mr. Lovasz could walk for 30 minutes before needing to ice and
elevate his feet for 15-20 minutes. (Tr. 110.) He also struggled to sit for long periods of time
because his legs would go numb from the shins down. (Tr. 112.) He needed to use his scooter or
walker to assist with balance when standing up from a seated position. (Tr. 112-13.) Mr.
Lovasz’s right foot is more painful than his left. (Tr. 115-16.)
Mr. Lovasz described difficulty using his dominant right hand since he was electrocuted:
So when I got shocked, like my hand was in a claw, basically, for about four
months, four or five months. And so then through therapy, I’ve been able to open
the hand[] but I don’t have any strength in there. So like I have issues like holding
anything or writing anything.
At work, like I dropped the tablet all the time or I’d drop a phone. And it’s just very
sporadic as far as like when my hand decides not to work, like it could be working
and then all of a sudden it’s not.
Even like pretty much like gripping anything, like cooking in the kitchen, like it’s
really tough now, like holding a pan, holding a knife, things like that. So like any
food or anything like that that I prepare, like I have to make sure that my brother’s
home because I just, I don’t know, I’m always worried about like dumping
something on me.
(Tr. 106-07.) Mr. Lovasz reported side effects of drowsiness and fatigue from his gabapentin
and anxiety medicines. (Tr. 113.) His doctors told him that his neuropathy is likely to worsen
over time. (Tr. 114.) Both of his feet were equally painful but his right foot had more nerve
damage. (Tr. 115-16.) The pain was present every day, but sometimes his feet were numb
instead of painful. (Tr. 116.)
16

ii.

Vocational Expert’s Testimony

A Vocational Expert (“VE”) testified at the hearing. (Tr. 117-124.) He testified that a
hypothetical individual of Mr. Lovasz’s age, education, and work experience, with the functional
limitations described in the RFC determination, could not perform Mr. Lovasz’s past work (Tr.
119), but could perform representative positions in the national economy, like marker, produce
weigher, bagger/laundry (Tr. 119-20). If the person would be absent more than one day per
month on an ongoing basis, or off-task more than 10% of the time, the VE testified that would
preclude competitive employment. (Tr. 122.)
III.

Standard for Disability

Under the Social Security Act, 42 U.S.C § 423(a), eligibility for benefit payments
depends on the existence of a disability. “Disability” is defined 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.” 42 U.S.C. § 423(d)(1)(A).
An individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy[.]
42 U.S.C. § 423(d)(2)(A).
To make a determination of disability under this definition, an ALJ is required to follow a
five-step sequential analysis set out in agency regulations, summarized as follows:
1.

If the claimant is doing substantial gainful activity, he is not disabled.

2.

If the claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.

3.

If the claimant is not doing substantial gainful activity, is suffering from a
17

severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a listed
impairment, the claimant is presumed disabled without further inquiry.
4.

If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if
the claimant’s impairment prevents him from doing past relevant work. If
the claimant’s impairment does not prevent him from doing his past relevant
work, he is not disabled.

5.

If the claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.

20 C.F.R. § 404.1520; see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287, 96 L.
Ed. 2d 119 (1987). Under this sequential analysis, the claimant has the burden of proof at Steps
One through Four. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The
burden shifts to the Commissioner at Step Five to establish whether the claimant has the
Residual Functional Capacity (“RFC”) and vocational factors to perform other work available in
the national economy. Id.
IV.

The ALJ’s Decision

In his December 7, 2021 decision, the ALJ made the following findings: 2

2

1.

The claimant met the insured status requirements of the Social Security
Act through December 31, 2025. (Tr. 63.)

2.

The claimant had engaged in substantial gainful activity since December
15, 2019, the application date. (Id.)

3.

The claimant had the following severe impairments: open reduction
internal fixation (ORIF) 5th metatarsal fracture, history of nonunion and
interval breakage of hardware in right foot, osteopenia; history of
concussions with memory loss; mild cognitive impairment; diabetes
mellitus; polyneuropathy; degenerative disc disease of the cervical spine;
major depressive disorder (MDD); trauma related disorder; anxiety with
depression; left shoulder status-post surgery (arthroscopic capsular release

The ALJ’s findings are summarized.

18

and bicep tenotomy) left shoulder impingement; right shoulder adhesive
capsulitis and bicipital tendinitis and impingement, superior labral tear,
status-post surgery (arthroscopic pancapsular release; arthroscopic biceps
tenotomy; subacromial decompression; arthroscopic extensive
debridement); and electrocution. (Tr. 63.)
4.

The claimant did not have an impairment or combination of impairments
that meets or medically equals the severity of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 64.)

5.

The claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except: He can frequently
handle, finger, and feel on the right. He can frequently reach in all
directions with the bilateral upper extremities. He can frequent use
bilateral foot controls. He can frequently climb ramps and stairs. He can
frequently stoop, kneel, crouch, and crawl. He can never climb ladders,
ropes, or scaffolds. He must avoid concentrated exposure to extreme cold,
extreme heat, and vibrations. He must avoid concentrated exposure to
unprotected heights, dangerous moving mechanical parts, or operate a
motor vehicle. He has the ability to carry out, concentrate, persist, and
maintain pace for completing simple, routine, and repetitive tasks. He can
have superficial interaction with coworkers and the public. Superficial
interaction is defined as work that does not involve any work tasks such as
arbitration, negotiation, confrontation, being responsible for safety of
others, or directing work of others never climb ladders, ropes, or scaffolds;
occasionally climb ramps and stairs, frequently stoop, kneel, crouch and
crawl; avoid all exposure to hazardous machinery and unprotected heights;
no commercial driving, never operate foot controls; can understand,
remember, and carry out simple instructions; Perform simple, routine, and
repetitive tasks but not at a production rate pace such as an assembly line;
adapt to routine changes in the workplace that are infrequent and easily
explained. (Tr. 68.)

6.

The claimant is unable to perform any past relevant work. (Tr. 77.)

7.

The claimant is currently a younger individual. (Tr. 78.)

8.

The claimant has at least a high school education. (Id.)

9.

Transferability of job skills is not material to the determination of
disability. (Id.)

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform. (Id.)

19

Based on the foregoing, the ALJ determined that Mr. Lovasz had not been under a
disability, as defined in the Social Security Act, from the alleged disability onset date through the
date of the decision. (Tr. 79.)
V.

Plaintiff’s Arguments

Mr. Lovasz argues that the ALJ’s RFC is not supported by substantial evidence because
her evaluation of Dr. Archacki’s Off-Task / Absenteeism Questionnaire did not comply with the
controlling regulation for evaluating medical opinion evidence. (ECF Doc. 8, p. 1.)
VI.
A.

Law & Analysis

Standard of Review
A reviewing court must affirm the Commissioner’s conclusions absent a determination

that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. See Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 405 (6th Cir. 2009) (“Our review of the ALJ’s decision is limited to whether the ALJ
applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.”).
When assessing whether there is substantial evidence to support the ALJ’s decision, the
Court may consider evidence not referenced by the ALJ. Heston v. Comm’r of Soc. Sec., 245
F.3d 528, 535 (6th Cir. 2001). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Hum. Servs., 966 F.2d 1028, 1030
(6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th
Cir. 1989)). The Commissioner’s findings “as to any fact if supported by substantial evidence
shall be conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006)

20

(citing 42 U.S.C. § 405(g)). “‘The substantial-evidence standard . . . presupposes that there is a
zone of choice within which the decisionmakers can go either way, without interference by the
courts.’” Blakley, 581 F.3d at 406 (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)).
Therefore, a court “may not try the case de novo, nor resolve conflicts in evidence, nor decide
questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if
substantial evidence supports a claimant’s position, a reviewing court cannot overturn the
Commissioner’s decision “so long as substantial evidence also supports the conclusion reached
by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
Although an ALJ decision may be supported by substantial evidence, the Sixth Circuit
has explained that the “‘decision of the Commissioner will not be upheld where the SSA 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 Soc. Sec. Admin., 582 F.3d 647, 651
(6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-547 (6th Cir. 2004))). A decision will also not
be upheld where the Commissioner’s reasoning does not “build an accurate and logical bridge
between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio
2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)).
B.

Sole Assignment of Error: Whether ALJ Erred in Assessing Persuasiveness of OffTask / Absenteeism Questionnaire from Dr. Archacki
In his sole assignment of error, Mr. Lovasz argues that the ALJ’s decision was not

supported by substantial evidence because her evaluation of Dr. Archacki’s Off-Task /
Absenteeism Questionnaire (hereinafter “Questionnaire”) did not abide by the governing
regulation for evaluating medical opinion evidence. (ECF Doc. 8, pp. 1, 13-23.) The

21

Commissioner argues in response that the ALJ’s evaluation of the Questionnaire was supported
by substantial evidence. (ECF Doc. 10, pp. 10-18.)
1.

Framework for Evaluation of Medical Opinion Evidence

The Social Security Administration’s (“SSA”) regulations for evaluating medical opinion
evidence require ALJs to evaluate the “persuasiveness” of medical opinions “using the factors
listed in paragraphs (c)(1) through (c)(5)” of the regulation. 20 C.F.R. § 404.1520c(a); see Jones
v. Comm’r of Soc. Sec., No. 3:19-CV-01102, 2020 WL 1703735, at *2 (N.D. Ohio Apr. 8, 2020).
The five factors to be considered are supportability, consistency, relationship with the claimant,
specialization, and other factors. 20 C.F.R. § 404.1520c(c)(1)-(5). The most important factors
are supportability and consistency. 20 C.F.R. §§ 404.1520c(a), 404.1520c(b)(2). ALJs must
explain how they considered consistency and supportability, but need not explain how they
considered the other factors. 20 C.F.R. § 404.1520c(b)(2).
As to supportability, the regulations state: “The more relevant the objective medical
evidence and supporting explanations presented by a medical source are to support his or her
medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). In
other words, “supportability” is the extent to which a medical source’s own objective findings
and supporting explanations substantiate or support the findings in the opinion.
As to consistency, the regulations state: “The more consistent a medical opinion(s) or
prior administrative medical finding(s) is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2). In other words,
“consistency” is the extent to which a medical source’s opinion findings are consistent with the
evidence from other medical and nonmedical sources in the record.
22

2.

Whether ALJ Erred in Assessing Persuasiveness of Questionnaire

The ALJ evaluated the persuasiveness of the Questionnaire as follows:
Dr. Archacki completed an Off-Task/Absenteeism Questionnaire on January 27,
2021 []. The claimant has diabetic neuropathy. He has an inability to concentrate,
pay attention, and/or focus on a sustained basis due to post-concussion syndrome.
He has pain in his feet. He has random drowsiness. A side effect of medication
includes sedation. Due to his impairments or treatments, he would be absent from
work about 4 times a month. The severity of his limitations have existed since at
least December 15, 2019. The undersigned finds these limitations unpersuasive
because they are extreme and are not consistent with or supported by the
preponderance of the evidence. On May 20, 2021, it was noted that the claimant
was improving cognitively. On June 29, 2021, examination noted no sensory
deficits. He had diminished sensory in the bilateral lower extremities on
November 2, 2021. On December 31, 2021, it was noted that the claimant had a
mild cognitive impairment. The claimant reported he can pay bills, watch TV,
manage funds, and use the internet and all of these require the ability to
concentrate, pay attention and focus.
(Tr. 75 (citations omitted) (emphasis added).)
Mr. Lovasz acknowledges the medical records and activities of daily living highlighted
by the ALJ, but argues that the ALJ failed to properly analyze the opinion because she: (1)
“comparably failed to provide an accurate recitation of the alleged inconsistencies between
Plaintiff’s activities of daily living and Dr. Archacki’s opinion,” effectively mischaracterizing the
records; (2) cherry-picked the records when she referred to findings of “mild cognitive
impairment” without acknowledging “objective neuropsychological testing . . . indicating of
severe cognitive deficits”; (3) reviewed the record “in a highly selective manner” when she noted
a finding of “no sensory deficits” despite other record findings reflecting a loss of sensation; and
(4) focused on diabetic neuropathy in analyzing Dr. Archacki’s opinion, when Mr. Lovasz also
had foot pain related to his podiatric impairments. (ECF Doc. 8, pp. 17-22.) The Court will
address the arguments in turn, although all appear to turn on a contention of “cherry-picking.”
An ALJ may not cherry pick facts to support a finding of non-disability while ignoring
evidence that points to a disability finding. See, e.g., Gentry v. Comm’r of Soc. Sec., 741 F.3d
23

708, 724 (6th Cir. 2014); Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 435 (6th Cir. 2013).
However, “an ALJ does not ‘cherry pick’ the evidence merely by resolving some inconsistencies
unfavorably to a claimant’s position.” Solembrino v. Astrue, No. 1:10–cv–1017, 2011 WL
2115872, at *8 (N.D. Ohio May 27, 2011). Indeed, arguments that an ALJ has cherry picked
evidence are “seldom successful because crediting it would require a court to re-weigh record
evidence.” DeLong v. Comm’r of Soc. Sec. Admin., 748 F.3d 723, 726 (6th Cir. 2014) (citing
White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009)).
i.

Whether ALJ Mischaracterized Activities of Daily Living

Mr. Lovasz’s first argument focuses on the ALJ’s observation that: “The claimant
reported he can pay bills, watch TV, manage funds, and use the internet and all of these require
the ability to concentrate, pay attention and focus.” (Tr. 75.) He speculates that this finding
references an August 2020 function report where Mr. Lovasz also reported cognitive issues, short
term memory loss, shopping via the internet, difficulty paying attention, and failing to finish
what he started. (ECF Doc. 8, p. 17 (citing Tr. 404-11).) He argues that the limited activities he
reported in the function report are consistent with Dr. Archacki’s opinion that he would be off
task for at least 20% of the workday. (Id. at p. 18.) In support, he cites to an unpublished
decision under the prior regulatory standard, where the court found: “to the extent the ALJ relies
solely on a claimant’s self-reported daily activities to discredit the medical opinion of her
treating physician, the recitation of said activities should, at the very least, be thorough and
accurate.” (Id. (quoting Melendez v. Comm’r of Soc. Sec., 2014 WL 2921938, at *6-8 (N.D.
Ohio June 27, 2014).) The Commissioner responds that Mr. Lovasz’s daily activities “were only
one reason among others cited for finding Dr. Archacki’s opinions unpersuasive” and further that
it was sufficient that the ALJ acknowledged his statements to providers regarding his difficulties
with daily activities within the decision as a whole. (ECF Doc. 10, pp. 16-17.)
24

A review of the decision reveals that the ALJ specifically discussed Mr. Lovasz’s selfreported activities of daily living in her listings analysis (Tr. 67), her subjective symptom
analysis (Tr. 69), and in her summaries of the treatment records (Tr. 70-73) and the consultative
psychological examination (Tr. 74-75), before she highlighted some of those activities in support
of her persuasiveness analysis for the Questionnaire (Tr. 75). She acknowledged his complaints
of cognitive issues, short-term memory loss, word-finding issues, losing things, and his shopping
via computer, but found “the objective evidence does not support his contentions regarding the
severity, chronicity and/or frequency of his symptoms.” 3 (Tr. 69.) The ALJ also explicitly cited
to records indicating—consistent with her findings in the persuasiveness analysis—that Mr.
Lovasz reported he could pay bills and manage his funds, that he shopped via computer, and that
he watched television. (See Tr. 69 (citing Tr. 404-11)); Tr. 74 (citing Tr. 1289-94).)
Thus, the ALJ considered Mr. Lovasz’s self-reported limitations, found the objective
evidence did not support his contentions regarding the severity, chronicity, or frequency of his
symptoms, and accurately described his self-reported activities in support of the persuasiveness
analysis. Mr. Lovasz has failed to demonstrate that the ALJ mischaracterized or “cherry-picked”
records relating to his activities of daily living in support of her persuasiveness analysis.
Mr. Lovasz’s citation to Melendez, 2014 WL 2921938, does not change this analysis.
Not only was that case decided under the now-inapplicable “good reasons” standard for treating
physician opinions that were given deference under the prior regulations, but the court in
Melendez explicitly noted that the ALJ had “relie[d] solely on [the] claimant’s self-reported daily
activities to discredit the medical opinion of her treating physician[.]” 2014 WL 2921938, at *67 (emphasis added). Here, in contrast, the ALJ found Dr. Archacki’s opinion to be “extreme”

3

Mr. Lovasz does not challenge the ALJ’s subjective symptom analysis in the present appeal.

25

and “not consistent with or supported by the preponderance of the evidence” based on subjective
and/or objective observations at four separate medical treatment visits, by way of example, in
addition to the activities of daily living discussed above. (Tr. 75.)
For the reasons set forth above, the Court finds Mr. Lovasz has not met his burden to
show that the ALJ’s description of his activities of daily living mischaracterized the record or
otherwise deprived the ALJ’s persuasiveness analysis of the support of substantial evidence.
ii.

Whether ALJ Ignored Records Regarding Cognitive Impairment

Mr. Lovasz’s second argument focuses on the observation: “On December 31, 2021, it
was noted that the claimant had a mild cognitive impairment.” (Tr. 75.) Mr. Lovasz argues that
his neurologist, Dr. Goldshmidt, reviewed the relevant finding of mild impairment—which was
made by a speech language pathologist in a cognitive linguistic evaluation—and opined that the
testing was “probably not detecting the specific dysfunction that [Mr. Lovasz] has, which seems
more of a processing speed/multi-tasking issue.” (ECF Doc. 8, p. 20 (citing Tr. 1580-81).) Mr.
Lovasz then argues that the ALJ erred when she cited to that mild cognitive impairment finding
without also discussing his 2020 NeuroTrax test results, which he characterized as “objective
neuropsychological testing. . . indicative of severe cognitive deficits” and “highly relevant to
determining Plaintiff’s true functioning.” (Id. at pp. 20-21 (citing (Tr. 827, 1345-48).)
A review of the records cited by Mr. Lovasz raises several concerns regarding the clarity
and accuracy of his characterizations. First, Dr. Goldschmidt’s observations in November 2021
that certain cognitive findings were “within the normal range” but “probably not detecting the
specific dysfunction that [Mr. Lovasz] has” (Tr. 1614, 1617) did not refer to the cognitive
linguistic evaluation findings of mild impairment referenced by the ALJ. Instead, Dr.
Goldschmidt referred to the Montreal Cognitive Assessment (MoCA) she performed at that
November 2021 treatment visit, which was suggestive of no cognitive impairment. (Id.) Dr.
26

Goldschmidt did then recommend formal neurocognitive testing, followed by cognitive therapy
(Tr. 1617), and it was a month later that Mr. Lovasz attended the cognitive speech evaluation
with SLP Honn that revealed the mild impairment noted by the ALJ in her analysis (Tr. 158081). Thus, Mr. Lovasz’s assertion that Dr. Goldschmidt reviewed SLP Honn’s findings of mild
impairment and then opined that further testing was required, concluding those findings probably
did not detect Mr. Lovasz’s specific dysfunction, is inaccurate and not supported by the record.
Second, Mr. Lovasz’s characterization of the NeuroTrax test results as “objective
neuropsychological testing that was . . . indicative of severe cognitive deficits with standardized
scores ranging from two to 5 standard deviations below the mean” that were “according to Dr.
Goldschmidt, highly relevant to determining Plaintiff’s true functioning” (ECF Doc. 8, pp. 2021) also does not appear consistent with the record. Dr. Sunshine’s only findings regarding the
NeuroTrax results were that they “revealed[] impairment[s] with [] working memory, memory,
global cognitive score, [and] attention.” (Tr. 827.) He did not find a “severe cognitive deficit.”
(Id.) Instead, Mr. Lovasz extrapolates a finding of severe impairment from the test results
themselves, even though the test report contains clear disclaimers that the results are not
“medical advice” or “a diagnosis” and that the report “does not constitute the practice of
medicine, neuropsychology or the provision of professional health care advice,” and “is not
intended to replace evaluation by a qualified medical professional, nor is it intended as the basis
for medical diagnosis or treatment.” (Tr. 1350.) The record thus does not bear out Mr. Lovasz’s
characterization of the NeuroTrax testing as equivalent to “formal neurocognitive testing,” as
contemplated by Dr. Goldschmidt, or “objective neuropsychological testing . . . indicative of
severe cognitive deficits.” (ECF Doc. 8, p. 21.)

27

Nevertheless, the ALJ provided a detailed discussion of Mr. Lovasz’s treatment with Dr.
Sunshine, including acknowledging that: “NeuroTrax on May 11, 2020, noted cognitive testing
revealed impairment with working memory, memory, global cognitive score, and attention.” (Tr.
71-73.) This general finding of impairment is consistent with Dr. Sunshine’s stated findings
regarding the NeuroTrax results. (Tr. 827.) The ALJ also acknowledged in her summary of Dr.
Sunshine’s records that Mr. Lovasz continued to complain of memory issues at his treatment
visits, but also noted (accurately) that Mr. Lovasz’s brain MRI findings were unremarkable, his
EEG was within normal limits, he was alert and oriented on examination, his cortical functions
and speech were normal, and he reported in May 2021 that his memory had improved and he was
doing better from a cognitive standpoint. (Tr. 71-73.)
In the relevant persuasiveness analysis, the ALJ noted both the findings of mild cognitive
impairment in December 2021 and Mr. Lovasz’s own report to Dr. Sunshine in May 2021 that he
was improving cognitively. (Tr. 75.) While she did not include further discussion of the
NeuroTrax findings in this analysis, she was not required to “reproduce the list of [] treatment
records a second time when she explained why [the] opinion was inconsistent with this record.”
Crum v. Comm’r of Soc. Sec., 660 F. App’x 449, 457 (6th Cir. 2016) 7 (citing Forrest, 591 F.
App’x at 366); Bledsoe, 165 F. App’x at 411. Further, Ms. Lovasz has failed to show that the
ALJ’s earlier characterization of the NeuroTrax records was inaccurate, or that further discussion
of that record was necessary to ensure that the analysis was supported by substantial evidence.
For the reasons set forth above, the Court finds Mr. Lovasz has not met his burden to
demonstrate that the ALJ’s discussion of his cognitive impairment mischaracterized the record or
otherwise deprived the ALJ’s persuasiveness analysis of the support of substantial evidence.

28

iii.

Whether ALJ Ignored Evidence Regarding Physical Impairments

Mr. Lovasz’s final arguments focus on the ALJ’s observations that: “On June 29, 2021,
examination noted no sensory deficits. He had diminished sensory in the bilateral lower
extremities on November 2, 2021.” (Tr. 75.) Mr. Lovasz argues that the ALJ reviewed the
record “in a highly selective manner” when she: noted a finding of “no sensory deficits” despite
records reflecting a loss of sensation; and focused on diabetic neuropathy when Mr. Lovasz also
had foot pain related to his podiatric impairments. (ECF Doc. 8, pp. 21-22.)
In her decision, the ALJ acknowledged Mr. Lovasz’s complaints of neuropathy and foot
pain that interfered with balancing, standing, and walking (Tr. 69) and summarized the treatment
records relating to his broken foot with non-union, ORIF surgery, and neuropathy (Tr. 69-73).
The summary accurately noted that some physical examinations revealed reduced sensation and
others revealed normal sensation. (See, e.g., Tr. 71 (4/30/20, reduced sensation); Tr. 71 (5/20/21,
sensation intact).) The ALJ also noted EMG findings consistent with mild motor sensory
peripheral neuropathy. (Tr. 72.) It is in the context of this earlier discussion that the ALJ made
the further observations in her persuasiveness analysis that physical examinations in June and
November 2021 revealed no sensory deficits and diminished sensation respectively. (Tr. 75.)
The ALJ’s characterizations of the two records were accurate. (See Tr. 1548, 1615-16.)
Mr. Lovasz’s argument that the ALJ reviewed the record “in a highly selective manner”
when she noted a finding of “no sensory deficits” in her persuasiveness analysis (ECF Doc. 8, p.
21) lacks merit. Not only did the ALJ acknowledge earlier in her decision that there was
objective evidence of sensory deficits in the lower extremities (Tr. 71, 72), she also
acknowledged that same fact in the sentence immediately following her description of the record
noting no sensory deficits (Tr. 75).

29

Mr. Lovasz’s underdeveloped argument that the ALJ also erred because he did not
specifically discuss her right foot fracture in light of Dr. Archacki’s hand-written note identifying
“foot” as the site of his pain must also fail. As noted above, the ALJ was not required to
“reproduce the list of [] treatment records a second time when she explained why [the] opinion
was inconsistent with this record.” Crum, 660 F. App’x at 457. The ALJ discussed the
treatment relating to Mr. Lovasz’s broken foot, non-union, and ORIF surgery at length in the
decision. (Tr. 69-73.) Mr. Lovasz’s conclusory argument that the ALJ did not consider those
impairments, or related treatment, because the ALJ did not specifically discuss them in her
persuasiveness analysis is not well taken.
In addressing the ALJ’s persuasiveness findings, the Court notes that the ALJ did not
wholly discount Dr. Archacki’s opinion that Mr. Lovasz may be off task due to his neuropathy,
pain, and/or post-concussion syndrome. While she found his opinion regarding the extent of Mr.
Lovasz’s limitations to be “extreme” (Tr. 75), she nevertheless adopted an RFC that limited him
to light work with restrictions in climbing, postural positions, and the use of his arms and legs,
limited exposure to heat, cold, and vibrations, precluded exposure to hazards, and further limited
him to simple, routine, repetitive tasks with no more than superficial interaction. (Tr. 68).
Ultimately, even if a preponderance of the evidence supports a finding that Dr. Archaki’s
medical opinion is persuasive, this Court cannot overturn the ALJ’s finding to the contrary “so
long as substantial evidence also support[ed] the conclusion reached by the ALJ.” Jones, 336
F.3d at 477; Blakley, 581 F.3d at 406. Regardless of whether there was evidence to support the
off-task and absenteeism limitations set forth in the Questionnaire, the question before this Court
is whether there was substantial evidence to support the ALJ’s finding to the contrary.

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Upon consideration of the ALJ decision and the evidentiary record, the Court finds that
the ALJ considered the full record in evaluating the persuasiveness of the medical opinion,
appropriately articulated her reasons for finding the opinion unpersuasive, and made a
determination that was supported by substantial evidence. Mr. Lovasz has not met his burden to
show that the ALJ mischaracterized the records or failed to consider the entire record when
evaluating the persuasiveness of Dr. Archacki’s medical opinion, or to show that the ALJ’s
persuasiveness finding otherwise lacked the support of substantial evidence.
VII.

Conclusion

For the foregoing reasons, the Court AFFIRMS the Commissioner’s decision.
September 24, 2024
/s/Amanda M. Knapp
AMANDA M. KNAPP
United States Magistrate Judge

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