Hartzer v. Commissioner of Social Security

Filing 10

Report and Recommendation that the Court AFFIRM the Commissioner's final decision. Objections to Report & Recommendation due by 9/11/2024. Referral Terminated. Signed by Magistrate Judge Jennifer Dowdell Armstrong on 8/28/2024. (K,L)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
VICKIE M. HARTZER,

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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant,

I.

CASE NO. 3:23-CV-01972-JRK
U.S. DISTRICT JUDGE
JAMES R. KNEPP, II
U.S. MAGISTRATE JUDGE
JENNIFER DOWDELL ARMSTRONG
REPORT AND RECOMMENDATION

INTRODUCTION
Plaintiff, Vickie M. Hartzer (“Ms. Hartzer”), seeks judicial review of the final decision of

the Commissioner of Social Security (“the Commissioner”) denying her applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (ECF No. 1.) This matter
is before me pursuant to 42 U.S.C. §§ 405(g) and Local Rule 72.2(b). (ECF non-document entry
dated July 25, 2023.) For the reasons set forth below, I RECOMMEND that the Court AFFIRM
the Commissioner’s final decision.
II.

PROCEDURAL HISTORY
On July 19, 2019, Ms. Hartzer applied for DIB and SSI, alleging a disability onset date of

June 1, 2019. (Tr. 171, 340.) Her application related to, in relevant part, attention deficit
hyperactivity disorder (“ADHD”), depression, anxiety, and bipolar disorder. (Tr. 340, 347, 403.)
Her application was denied initially and upon reconsideration. (Tr. 136-37, 166-67.) An
administrative law judge (“ALJ”) held an administrative hearing on March 15, 2022, which later
resulted in the ALJ issuing an unfavorable decision. (Tr. 171.) The Appeals Council granted Ms.
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Hurst’s request for review and remanded the case to the ALJ to give further consideration to the
prior administrative medical findings. (Tr. 189.)
On October 3, 2022, another ALJ held an administrative hearing where Ms. Hartzer,
represented by counsel, and a vocational expert (“VE”) testified. (Tr. 42-68.) The ALJ issued a
decision on November 15, 2022, finding Ms. Hartzer was not disabled within the meaning of the
Social Security Act. (Tr. 19-34.) The ALJ’s decision became final on August 11, 2023, when the
Appeals Council declined further review. (Tr. 3.) Ms. Hartzer filed a Complaint on October 10,
2023. (ECF No. 1.) She raises the following assignment of error:
(1) The ALJ failed to account for a specific limitation opined by the state agency’s
own reviewing mental health expert, and that omitted limitation could have
altered the entire outcome of the claim.
(ECF No. 6, PageID#1354.)
III.

BACKGROUND1
A. Personal, Educational, and Vocational Information
Ms. Hartzer was born in 1976. (Tr. 77, 347.) She has a wife and two children. (Tr. 78.) She

has a GED, and she did not attend college or receive any vocational training. (Tr. 79.) Her past
relevant work was employment as a cook and delivery driver. (Tr. 32.)
B. Relevant Non-Medical/Medical Opinion Evidence
In September 2019, Lisa Foulk, PsyD, reviewed the record at the initial level of
consideration. Dr. Foulk opined that Ms. Hartzer is able to complete 1- to 3-step tasks that do not
require a sustained pace; can adapt to an environment with infrequent change; and has no social
limitations. (Tr. 119-20.) Robert Baker, Ph.D., reviewed the record at the reconsideration level in
November 2019. Dr. Baker opined that Ms. Hartzer is able to understand and remember 1- to 3-

1

Because Ms. Hartzer’s assignment of error pertains to her mental impairments, this Report and Recommendation’s
summary will only discuss evidence related to these impairments.

2

step instructions; able to concentrate sufficiently for the completion of 1- to 3-step tasks; able to
work in a setting with occasional, superficial interactions with others; and will need occasional
flexibility with breaks when experiencing increased symptoms. (Tr. 147-48.)
C. Relevant Medical Evidence
Ms. Hartzer received mental health treatment in the form of psychotherapy and medication
management during the relevant period. Bipin Desai, M.D., Ms. Hartzer’s psychiatrist, diagnosed
her in February 2018 with bipolar II disorder, anxiety disorder, and ADHD, for which he
prescribed medications, including Klonopin, Latuda, Adderall, and Zoloft. (Tr. 715.) Her mental
status examination revealed fair mood and affect, intact associations, logical thinking, appropriate
thought content, and fair insight and judgment. (Tr. 714.)
On May 7, 2018, Ms. Hartzer returned for a follow-up appointment with Dr. Desai, where
Dr. Desai noted that she was compliant with her medication. (Tr. 700.) Her mental status
examination revealed euthymic mood with no signs of depression or elevation, generally
appropriate behavior, intact associations, generally logical thinking, appropriate thought content,
no present signs of anxiety, and normal insight and judgment. (Id.)
On November 29, 2018, Ms. Hartzer described herself as irritable, inattentive, and
disorganized. (Tr. 702.) She admitted to “veg” symptoms. (Id.) She reported she “need[ed] to be
back on [her] meds.” (Id.) Dr. Desai noted that Ms. Hartzer appeared to be anxious. (Id.) Ms.
Hartzer’s mental status examination revealed depressed and irritable mood, intact associations,
logical thinking, appropriate thought content, no suicidal ideas or intent, and fair insight and
judgment. (Id.)
At an October 28, 2019, appointment with Dr. Desai, Ms. Hartzer reported that she was
depressed and admitted again to “veg” symptoms. (Tr. 919.) Dr. Desai spoke with Ms. Hartzer

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about decreasing her Klonopoin dosage, but Ms. Hartzer was reluctant to do so. (Id.) Her mental
status examination revealed moderate signs of depression, sad demeanor, depressed thought
content, intact associations, logical thinking, appropriate thought content, and fair insight and
judgment. (Tr. 920.)
On December 9, 2019, Ms. Hartzer reported that she was “feeling good” mentally. (Tr.
922.) She described herself as attentive, productive, and working. (Id.) Her mental status
examination revealed fair mood and affect, intact associations, logical thinking, appropriate
thought content, no suicidal/homicidal ideation, and fair insight and judgment. (Tr. 922-23.)
Ms. Hartzer’s therapist, Victoria Endicott, LISW, began seeing Ms. Hartzer in June 2020.
(Tr. 1021.) Ms. Hartzer reported at her initial intake on June 18, 2020, that she was mentally
exhausted and never left the house. (Tr. 1021.) However, apart from some depression, Ms.
Hartzer’s mental status examination was normal. (Tr. 1023.)
On July 20, 2020, Ms. Hartzer reported feeling better except for a poor attention span. (Tr.
940.) Her mental status examination revealed fair mood and affect, intact associations, logical
thinking, appropriate thought content, no suicidal/homicidal ideation, and fair insight and
judgment. (Tr. 941.)
On August 7, 2020, Ms. Hartzer reported that she felt better and had not had any angry
outbursts since she began an increased dose of Abilify. (Tr. 1014.) Ms. Endicott noted that Ms.
Hartzer’s mood was improved, and her mental status examination was otherwise normal. (Tr.
1015.) Ms. Hartzer reported at her September 15, 2020, counseling appointment that her anxiety
and depression had improved, and she was doing “alright.” (Tr. 1007-08). On October 12, 2020,
Ms. Hartzer reported feeling good and having an improved attention span. (Tr. 943.) Her mental

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status examination revealed fair mood and affect, intact association, appropriate thought content,
no suicidal/homicidal ideation, and fair insight and judgment. (Tr. 944.)
Ms. Hartzer reported on October 29, 2020, that she was irritable and anxious, but she was
trying to distract herself from her “mostly unvented anger” by doing craft and refurbishing
projects, as well working out on her elliptical machine as often as she could. (Tr. 1004.) She
reported on December 1, 2020, that she was feeling “[o]verall not too bad,” but said she could not
do crafts in her garage because it was too cold. (Tr. 1000.) She felt more emotionally stable on
Abilify and Strattera, but she still avoided crowds due to fear of an angry outburst. (Id.) She agreed
to practice what she had learned in cognitive behavior therapy in her daily life. (Tr. 1002.)
At a February 23, 2021, counseling appointment, Ms. Endicott noted minimal progress.
(Tr. 1279.) Ms. Hartzer reported that she had been struggling more and was trying to gain custody
of her granddaughter. (Id.) On March 31, 2021, Ms. Hartzer told Ms. Endicott that she was working
on crafts and refinishing furniture pieces. (Tr. 1282.) Dr. Desai had recently adjusted her
medications, and Ms. Hartzer said that she knew they were helping because she was functioning
better. (Id.) However, she still struggled with anxiety and agitation around other people. (Id.) On
July 13, 2021, Ms. Hartzer reported that “[t]hings [we]re okay.” (Tr. 1294.) Her moods were “a
little snappy, but not terrible.” (Id.) She reported feeling a lot of guilt and sadness related to being
unable to obtain visitation with her granddaughter. (Id.)
On September 7, 2021, Ms. Hartzer reported to Dr. Desai that she was depressed. (Tr.
1150.) Her wife’s mother was under hospice care, and she had to put her dog down due to cancer.
(Id.) Dr. Desai observed that Ms. Hartzer demonstrated moderate signs of depression, sad
demeanor, depressed thought content, depressed facial expression, body posture, attitude, and

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general demeanor, but intact associations, logical thinking, appropriate thought content, no
suicidal/homicidal ideations, and fair insight and judgment. (Tr. 1151.)
On November 29, 2021, Ms. Hartzer reported feeling better, having a fair attention span,
and coping with her “multiple losses.” (Tr. 1153.) She denied symptoms of anxiety, depression, or
mania. (Id.) Her mental status examination revealed improved mood and affect, intact associations,
logical thinking, appropriate thought content, no suicidal/homicidal ideation, and fair insight and
judgment. (Tr. 1153-54.)
On March 23, 2022, Ms. Hartzer told Dr. Desai that she stopped taking Abilify and Strattera
because they made her tired, but she said she was “feeling pretty good” and her attention span was
fair. (Tr. 1156.) On June 15, 2022, Ms. Hartzer again reported that she felt “pretty good” with a
fair attention span and no depression, anxiety, or mania. (Tr. 1159.)
D. Relevant Hearing Testimony
1. Ms. Hartzer’s Testimony
Ms. Hartzer testified that her mental health impairments make it difficult for her to adapt
to dramatic change. (Tr. 84-85.) She stated that dramatic change results in anxiety make her
nervous around people, shaky, and she experiences dry mouth. (Tr. 85.) She reported that this
anxiety gets to the point of panic attacks when she is around three or four people. (Id.) Because of
her anxiety around people, she does her shopping primarily online. (Id.) She described herself as
irritable and moody. (Tr. 85-86.) She reported experiencing crying spells and outbursts of anger
“[a]ll the time.” (Tr. 86.) She testified she has “rough days” where she does not want to get out of
bed, talk to anyone, or do anything. (Id.) She stated that her mental health interferes with her ability
to focus or concentrate on things every day. (Tr. 86-87.) She described her mood as “all over the
place.” (Tr. 87.) Her mood “really depends on the weather.” (Id.) She has been seeing mental

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health professionals for over 20 years and has found them to be helpful. (Id.) She takes medication
for her mental health conditions and also finds them helpful. (Id.) She described her sleep as “soso” and testified that she was working with a counselor to improve her sleep. (Tr. 88.) She is able
to manage her hygiene and do basic chores around the house, such as cooking, cleaning, laundry,
and dishes, but she does so with pain due to her physical health conditions. (Id.)
2. Vocational Expert’s Testimony
The VE testified that Ms. Hartzer’s past relevant work was employment as an outside
deliverer, cook, and lawn mower. (Tr. 100.) The ALJ first asked the VE whether an individual
with Ms. Hartzer’s age, education, and work experience could perform work at the light exertional
level if limited to frequent reaching overhead bilaterally; frequent handling and fingering
bilaterally; occasional climbing of ramps or stairs; no climbing ladders, ropes, or scaffolds;
occasional balancing, stooping, kneeling, crouching, or crawling; no exposure to unprotected
heights, hazardous machinery, or commercial driving; performance of simple routine tasks and
simple work-related decisions; and occasional interactions with supervisors, coworkers, or the
general public. (Tr. 100-01.) The ALJ added that this individual could tolerate a few changes in a
routine work setting. (Tr. 101.) The VE opined that the individual could not perform Ms. Hartzer’s
past relevant work but could perform work as a housekeeper, cafeteria attendant, and mail clerk.
(Id.)
The ALJ then asked the VE whether an individual with the same limitations from the first
hypothetical except limited to occasional reaching overhead and occasional handling and fingering
bilaterally could perform work. (Tr. 102.) The VE opined that no jobs would be available. (Id.)
The ALJ asked the VE whether an individual with the same limitations from the first hypothetical
except limited to work at the sedentary exertional level could perform work. (Id.) The VE opined

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that this individual could perform work as a document preparer, bench assembler, and finisher.
(Id.) The ALJ also asked whether an individual with the same limitations from the first hypothetical
except would be off task 20 percent of the time and absent three times per month could perform
work. (Tr. 103.) The VE opined that no work would be available. (Id.)
The ALJ asked the VE about an employer’s general tolerance for an employee’s time off
task and absenteeism. (Id.) The VE opined that an individual could be off task no more than 10
percent of the time and absent no more than once a month to sustain competitive employment.
(Id.)
Ms. Hartzer’s counsel asked the VE what the typical break schedule in unskilled work
would be. (Tr. 104.) The VE testified that the customary breaks are 15 minutes in the morning, 30
minutes to an hour for lunch, and another 15 minutes in the afternoon. (Id.) The VE further testified
that an employer or supervisor typically sets the breaks more than the employee does. (Id.) Ms.
Hartzer’s counsel then asked whether an individual could perform work if she required occasional
(i.e., a third of the time) flexibility with breaks. (Id.) The VE testified that this was a “[d]ifficult
question to answer” and that he would say that this limitation would erode some of the numbers
noted for the opined jobs. (Id.) The VE, however, stated that he did not think this limitation would
be work preclusive. (Id.)
IV.

THE ALJ DECISION
The ALJ first found that Ms. Hartzer meets the insured status requirements of the Social

Security Act through December 31, 2024. (Tr. 22.) The ALJ then found Ms. Hartzer has not
engaged in substantial gainful activity since June 1, 2019, the alleged disability onset date. (Tr.
22.) The ALJ further found that Ms. Hartzer has the following severe impairments, in relevant
part: ADHD, anxiety disorder, major depressive disorder, and bipolar disorder. (Tr. 23.) However,

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the ALJ found that none of Ms. Hartzer’s impairments—either individually or in combination—
met or medically equaled the severity of a listed impairment in 20 C.F.R. Pt. 404, Subpt. P, App.
1. (Tr. 23-25.)
The ALJ determined that Ms. Harzter retained the residual functional capacity (“RFC”) to
perform work at the sedentary exertional level except:
no climbing ladders, ropes, and scaffolds, no working at unprotected heights or
around hazardous machinery, and no commercial driving; no crawling; occasional
climbing or ramps and stairs, balancing, stooping, crouching and kneeling;
occasional bilateral overhead reaching; frequent bilateral handing and fingering;
simple routine work with occasional interaction with co-workers and supervisors
and no tandem tasks; no work with the general public as part of routine job duties;
work is of a variable rate meaning no fast-paced assembly line type work or work
where the machine sets the pace; only occasional decision-making and only
occasional changes in the work setting; and end of day work goals versus strict
hourly production requirements.
(Tr. 25.)
The ALJ then determined that Ms. Hartzer is unable to perform any of her past relevant
work. (Tr. 32.) The ALJ determined that transferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules as a framework supports
a finding that Ms. Hartzer is not disabled within the meaning of the Social Security Act. (Tr. 32.)
The ALJ found that, considering Ms. Hartzer’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that Ms. Hartzer can perform,
including employment as a sorter, sealer, and inspector. (Tr. 32-33.) Accordingly, the ALJ
concluded that Ms. Hartzer has not been under a disability as defined in the Social Security Act
from June 1, 2019, through the date of the ALJ’s decision. (Tr. 33.)

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V.

LAW AND ANALYSIS
A. Standard of Review
“After the Appeals Council reviews the ALJ’s decision, the determination of the council

becomes the final decision of the Secretary and is subject to review by this Court.” Olive v. Comm’r
of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007) (citing Abbott
v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538 (6th Cir. 1986)
(en banc)). The Court’s review “is limited to determining whether the Commissioner’s decision is
supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App. 315, 320 (6th Cir. 2015) (quoting Cole v. Astrue, 661 F.3d 931,
937 (6th Cir. 2011)); see also 42 U.S.C. § 405(g). “Substantial evidence is defined as ‘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.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). If the
Commissioner’s decision is supported by substantial evidence, it must be affirmed, “even if a
reviewing court would decide the matter differently[.]” Cutlip, 25 F.3d at 286; Kinsella v.
Schweiker, 708 F.2d 1058, 1059-60 (6th Cir. 1983).
In addition to considering whether the Commissioner’s decision was supported by
substantial evidence, the Court must determine whether the Commissioner applied proper legal
standards. Failure of the Commissioner to apply the correct legal standards as promulgated by the
regulations is grounds for reversal. See, e.g., White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th
Cir. 2009); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported
by substantial evidence, however, a decision of the Commissioner will not be upheld where the

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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.”).
Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence
in the record to support the decision, [where] the reasons given by the trier of fact do 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)
(alteration in original)).
B. Standard for Disability
The Social Security regulations outline a five-step sequential evaluation process that the
ALJ must use in determining whether a claimant is disabled: (1) whether the claimant is engaged
in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or
combination of impairments; (3) if so, whether that impairment, or combination of impairments,
meets or equals any of the listings in 20 C.F.R. § 404, Sbpt. P, App. 1; (4) if not, whether the
claimant can perform her past relevant work in light of his RFC; and (5) if not, whether, based on
the claimant’s age, education, and work experience, he can perform other work found in the
national economy. 20 C.F.R. § 404.1520(a)(4)(i)-(v); Combs v. Comm’r of Soc. Sec., 459 F.3d
640, 642-43 (6th Cir. 2006). The claimant bears the ultimate burden of producing sufficient
evidence to prove that he is disabled and, thus, entitled to benefits. 20 C.F.R. § 404.1512(a).
Specifically, the claimant has the burden of proof in Steps One through Four. 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 RFC to perform available work in the national
economy. Id.

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C. The ALJ properly evaluated Dr. Baker’s medical opinion.
Ms. Hartzer argues that the ALJ erred in evaluating the opinion of Dr. Baker. Specifically,
she contends that the ALJ failed to adequately explain her findings regarding the supportability,
consistency, and persuasiveness of Dr. Baker’s opinion that Ms. Hartzer needed occasional
flexibility in breaks when experiencing increased mental health symptoms. (ECF No. 6,
PageID#1362-65.) The Commissioner disagrees. (ECF No. 8, PageID#1375-79.) For the following
reasons, Ms. Hartzer’s argument is not well-taken.
At Step Four of the sequential evaluation, the ALJ must determine a claimant’s RFC after
considering all the medical and other evidence in the record. 20 C.F.R. § 404.1520(e). In doing so,
the ALJ is required to “articulate how she considered the medical opinions ad prior administrative
medical findings.” 20 C.F.R. § 404.1520c(a). At a minimum, the ALJ must explain how he
considered the supportability of a source’s medical opinion, but generally is not required to discuss
other factors. 20 C.F.R. § 404.1520c(b)(2). According to the regulation, the more consistent a
medical opinion is with the evidence from other medical and nonmedical sources, the more
persuasive the medical opinion will be. This is the consistency standard. And the regulation
specifies that the more relevant the objective medical evidence and supporting explanations
presented by a medical source are to support his or her medical opinion, the more persuasive the
medical opinion will be. This is the supportability standard. See 20 C.F.R. § 404.1520(c)(1)-(2).
In relevant part, the ALJ assessed Dr. Hartzer’s opinion as follows:
The State agency psychological consultant on reconsideration opined that the
claimant is able to concentrate sufficiently for the completion of 1-3 step tasks, is
able to work in a setting with occasional, superficial interactions with others, and
will need occasional flexibility with breaks when experiencing increased
symptoms. The setting must be free of major of frequent changes to her work
routine. On initial consideration, the claimant was to avoid work requiring a
sustained fast pace (1A), not included on reconsideration, and found no social
limitations, compared to the reconsideration where she was limited to occasional
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and superficial interaction with others and occasional flexibility in breaks when
experiencing increased symptoms. Both mental work-related assessments are quite
remote with the reconsideration assessment dated November 23, 2019. There is
significant evidence since the date of these assessments with only a handful of
exhibits considered at that time as compared to twenty-seven Section F exhibits.
Regardless, while the record evidence supports some assessment of limitation, the
record did not document listing level mental restriction.
Rather, mental health treatment records document improvement of claimant’s
mental health symptoms with treatment as well as greater activities of living. She
reported issues getting along with others, but there [are] also notations of her being
personable with all providers and reports going to the casino, and thus, in the
proximity of others. As noted above, the claimant described improvement in mood
with weight loss and participating in a considerable amount of activities of daily
living. On evaluation, sources described the claimant as having improving mental
status exam findings and movement in the right direction with process documented
(14F).
The overall record did not provide support for the state agency assessment that she
required flexibility in breaks when experiencing increased symptoms as suggested
by the reconsideration assessment and not included at the initial level. In taking this
under consideration, however, the claimant has been provided a reduction to the
complexity, pace, and productivity requirements, with no production quotas or
work on an assembly line.
(Tr. 31.)
Here, the ALJ provided sufficient rationale for the persuasiveness of Dr. Baker’s opinion.
As reproduced above, the ALJ found that “while the record evidence supports some assessment of
limitation,” it did not support Dr. Baker’s opinion that Ms. Hartzer required flexibility in breaks
when experiencing increased symptoms. (Tr. 31.) In addressing supportability, the ALJ assessed
that Dr. Baker did not have the opportunity to review the majority of evidence concerning Ms.
Hartzer’s mental health treatment because Ms. Hartzer submitted the evidence after the
reconsideration stage of administrative review. (Id.) (“There is significant evidence since the date
of these assessments with only a handful of exhibits considered at that time as compared to twentyseven Section F exhibits.”)). The medical evidence used by Dr. Baker in forming his opinion is
“the cornerstone of supportability.” Tyrone H. v. Comm’r of Soc. Sec., No. 2:22-cv-3652, 2023
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WL 2623571, at *8 (S.D. Ohio Mar. 24, 2023). The ALJ further addressed the supportability of
Dr. Baker’s opinion by noting that, based on the same evidence Dr. Baker reviewed at the
reconsideration level, Dr. Foulk—who reviewed the evidence at the initial stage of administrative
review—did not find that Ms. Hartzer needed flexibility in her work breaks. (Tr. 31, 120.)
The ALJ also addressed the consistency of Dr. Baker’s opinion. Although the ALJ did not
explicitly use the word “consistency” in his decision, an ALJ need not use the exact words
“supportability” or “consistency” to consider these factors in his credibility analysis. See Belnap
v. Comm’r of Soc. Sec., No. 1:22-CV-00202-CEH, 2022 WL 17669388, at *6 (N.D. Ohio Dec. 14,
2022); Tyrone H., 2023 WL 2623571, at *8 (“All told, the ALJ—in substance if not in explicit
language—assessed the supportability and consistency of the state agency psychologists’
findings.”). Here, the ALJ noted that Dr. Baker’s findings were inconsistent with the record as a
whole—and with the later-submitted evidence. The ALJ explained:
Rather, mental health treatment records document improvement of claimant’s
mental health symptoms with treatment as well as greater activities of living. She
reported issues getting along with others, but there [are] also notations of her being
personable with all providers and reports going to the casino, and thus, in the
proximity of others. As noted above, the claimant described improvement in mood
with weight loss and participating in a considerable amount of activities of daily
living. On evaluation, sources described the claimant as having improving mental
status exam findings and movement in the right direction with process documented
(14F).
(Tr. 31.)
Reading the decision as a whole and with common sense, the ALJ discussed these findings
earlier in the decision. See Crum v. Comm’r of Soc. Sec., 660 F. App’x 449, 457 (6th Cir. 2016)
(affirming ALJ’s evaluation of opinion where “[e]lsewhere in her decision, the ALJ laid out in
detail the treatment records” undercutting the opinion); Buckhannon v. Astrue, 368 F. App’x 674,
678-79 (7th Cir. 2010) (recognizing courts “read the ALJ’s decision as a whole and with common

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sense”). For example, the ALJ noted that Dr. Desai’s and Ms. Endicott’s treatment notes indicated
that Ms. Hartzer’s mood and functioning improved with medication, and her mental status
examinations were consistently normal. (Tr. 29; see Tr. 714, 919-20, 922, 925, 943, 1000, 1004,
1007-08, 1014, 1018, 1023, 1282.) This evidence supports the ALJ’s conclusion that evidence
submitted after the reconsideration level demonstrated that Ms. Hartzer’s mental health symptoms
improved and undermines Dr. Baker’s opinion that Ms. Hartzer requires flexibility in scheduling
work breaks when experiencing increased symptoms.
While the ALJ found that “[t]he overall record did not provide support for the state agency
assessment that she required flexibility in breaks when experiencing increased symptoms as
suggested by the reconsideration assessment and not included at the initial level,” the ALJ noted
that “[i]n taking this under consideration, however, [Ms. Hartzer] has been provided a reduction
to the complexity, pace, and productivity requirements with no production quotas or work on an
assembly line.” (Tr. 31.) The ALJ further accounted for Ms. Hartzer’s mental impairments,
finding:
In consideration of moderate deficits in interacting with others, and to further
reduce stress in the work setting, the claimant has been restricted to no work with
the general public or given work in a tandem co-worker environment. She should
also only have occasional (as defined by the DOT) interactions with co-workers
and supervisors. Finally, the claimant has been provided with limitations on
decision-making as well as changes in the work-setting.
(Tr. 31-32.) Thus, the ALJ concluded that, “[i]n light of these expanded limitations, there is no
support for any additional limitations and any different or additional limitations not adopted from
the state agency assessments are unpersuasive.” (Id.)
Accordingly, Ms. Hartzer’s argument that “[t]he ALJ did nothing more than simply declare
that Dr. Baker’s opinion that Ms. Hartzer required occasional flexibility was not supported by the
record” lacks merit. (ECF No. 6, PageID#1365.) Instead, the ALJ’s decision reflects that she
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adequately articulated the supportability and consistency of Dr. Baker’s opinion and drew a logical
bridge between the evidence and her conclusions in a manner that permits meaningful judicial
review. Where substantial evidence supports the ALJ’s RFC determination, this court must defer
to that decision even where substantial evidence supports the opposite conclusion. See Keeton v.
Comm’r of Soc. Sec., 583 F. App’x 515, 533 (6th Cir. 2014). Accordingly, I recommend that the
Court reject this assignment of error.
VI.

RECOMMENDATION
Based on the foregoing, I RECOMMEND that the Court AFFIRM the Commissioner’s

final decision.
Dated: August 28, 2024

VII.

/s Jennifer Dowdell Armstrong
Jennifer Dowdell Armstrong
U.S. Magistrate Judge

NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:
Any party may object to a Magistrate Judge’s proposed findings,
recommendations or report made pursuant to Fed. R. Civ. P. 72(b) within
fourteen (14) days after being served with a copy thereof, and failure to file
timely objections within the fourteen (14) day period shall constitute a waiver
of subsequent review, absent a showing of good cause for such failure. Such
party shall file with the Clerk of Court, and serve on the Magistrate Judge and all
parties, written objections which shall specifically identify the portions of the
proposed findings, recommendations, or report to which objection is made and the
basis for such objections. Any party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. The District
Judge to whom the case was assigned shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the Magistrate Judge. The District Judge need
conduct a new hearing only in such District Judge’s discretion or where required
by law, and may consider the record developed before the Magistrate Judge,
making a determination on the basis of the record. The District Judge may also

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receive further evidence, recall witnesses or recommit the matter to the Magistrate
Judge with instructions.
Id. (emphasis added).
Failure to file objections within the specified time may forfeit the right to appeal the
District Court’s order. Berkshire v. Beauvais, 928 F.3d 520, 530-531 (6th Cir. 2019).
Objections must be specific and not merely indicate a general objection to the entirety of the
report and recommendation; a general objection has the same effect as would a failure to
object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Stated differently, objections should focus on specific concerns and not merely restate
the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same
argument that was presented to the Magistrate Judge without specific objections ‘wastes
judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates
Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, at *2 (W.D. Ky. June 15,
2018) (quoting Howard). The failure to assert specific objections may in rare cases be
excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79
(6th Cir. 2019).

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