Neal v. Commissioner of Social Security

Filing 13

Memorandum Opinion and Order. Following review of the arguments presented, the record, and the applicable law, I affirm the Commissioner's decision denying disability insurance benefits and supplemental security income. Magistrate Judge Darrell A. Clay on 9/24/2024.(S,DM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JASMINE GLORIA SHANAY NEAL,

CASE NO. 5:24-CV-00237-DAC

Plaintiff,

MAGISTRATE JUDGE DARRELL A. CLAY
MEMORANDUM OPINION AND
ORDER

vs.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
Plaintiff Jasmine Neal challenges the Commissioner of Social Security’s decision denying
disability insurance benefits (DIB) and supplemental security income (SSI). (ECF #1). The District
Court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). On February 8, 2024, pursuant to
Local Civil Rule 72.2, this matter was referred to me to prepare a Report and Recommendation.
(Non-document entry dated Feb. 8, 2024). Subsequently, all parties consented to my exercising
jurisdiction over this matter pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of
Civil Procedure (ECF #7), and on March 7, 2024, this matter was re-assigned to me for
disposition. (Non-document entry dated March 7, 2024). Following review, and for the reasons
stated below, I AFFIRM the Commissioner’s decision.
PROCEDURAL BACKGROUND
This case concerns Ms. Neal’s second application for benefits. Ms. Neal was first found
disabled beginning on December 13, 2012. (See Tr. 80). On March 12, 2019, the Commissioner

1

found Ms. Neal no longer disabled as of March 1, 2019. (See id.). Ms. Neal requested a hearing
before an Administrative Law Judge and so on September 1, 2020, Ms. Neal (without counsel)
appeared for a hearing.1 (See id.). On November 18, 2020, the ALJ determined Ms. Neal was no
longer disabled as of March 1, 2019, and had not become disabled again since then. (Tr. 77-90).
Ms. Neal subsequently applied for DIB and SSI on May 6, 2021, alleging a disability-onset
date of November 19, 2020. (Tr. 100, 114). The claims were denied initially and on
reconsideration. (Tr. 161, 166, 174, 177). Ms. Neal then requested a hearing before an ALJ.
(Tr. 181). Ms. Neal (represented by counsel) and a vocational expert (VE) testified before the ALJ
on March 7, 2023. (Tr. 54-76). On March 15, 2023, the ALJ determined Ms. Neal was not
disabled. (Tr. 34-48). On December 18, 2023, the Appeals Council denied Ms. Neal’s request for
review, making the second hearing decision the final decision of the Commissioner. (Tr. 1-3; see
20 C.F.R. §§ 404.984(b)(2) and 416.1484(b)(2)). Ms. Neal (represented by new counsel) then
timely filed this action on February 8, 2024. (ECF #1).
FACTUAL BACKGROUND
I.

Personal and Vocational Evidence
Ms. Neal was 27 years old as of the 2020 disability-onset date and 31 years old at the 2023

hearing. (See ECF #1-1 at PageID 693). She has a high school education and prior work experience
as a home attendant. (Tr. 60, 71).

1

The transcript of the September 2020 hearing was not included in the
administrative record before this Court.
2

II.

Relevant Medical Evidence
Ms. Neal claims disability for her multiple sclerosis, Graves’ Disease,2 and major depressive

disorder. (Tr. 101, 104, 115, 118). She has been diagnosed with relapsing-remitting multiple
sclerosis (MS) since 2012. (Tr. 350). Ms. Neal also suffers from Graves’ Disease; although
diagnosed in 2018, this condition has been present for an undetermined amount of time before
that. (See Tr. 488, 503).
On January 1, 2021, Ms. Neal attended a telemedicine appointment with her treating
neurologist, Christopher Sheppard, M.D., who has been treating her MS since at least June 2017.
(Tr. 434; see also Tr. 350). Ms. Neal reported falling repeatedly, up to once per day but denied
tripping, feeling dizzy, or noticing weakness in her legs. (Tr. 434-35). She did not report any
injuries from her falls, and she could stand up after a few seconds. (Tr. 435). She reported
continued fatigue and left-arm weakness and numbness. (Id.). Dr. Sheppard believed Ms. Neal
should be prescribed medication but he noted prior medications were ineffective or resulted in
significant side effects. (Tr. 436). Dr. Sheppard also instructed Ms. Neal to pay attention to her
falls to see if she could discern an episodic weakness or foot drop that could be causing them. (Id.).
When Ms. Neal returned to Dr. Sheppard on March 10, 2021, she reported not falling
since her January appointment . (Tr. 438-39). However, she had recently started experiencing
sensory changes in her (non-dominant) right hand, first feeling itching, then pins and needles, but
no weakness. (Tr. 439). Her right arm, left arm, left hand, and legs were unaffected. (Id.). Ms. Neal
also reported forgetting things she was supposed to participate in over the weekend. (Id.). Dr.

2

Graves’ Disease is an autoimmune disorder that affects the thyroid gland. Graves
Disease, MedlinePlus, http://medlineplus.gov/ency/article/000358.htm (last accessed Sept. 24,
2024).
3

Sheppard again recommended medications and scheduled a follow-up appointment in a few
months. (Id.).
On August 30, 2021, Ms. Neal followed up with Dr. Sheppard. (Tr. 443). She reported
more sensory issues in her non-dominant right hand where her whole hand and fingers would go
numb and burn constantly. (Tr. 444). Her legs also felt weak when waking, and she struggled with
coordination when playing sports. (Id.). An examination revealed mild difficulty with coordination
while moving her finger to her nose and a slightly ataxic gait. (Tr. 445). She also reported chronic
problems with her memory and noticed repeating herself. (Tr. 444). Dr. Sheppard prescribed a
trial of Ocrevus3 and scheduled a follow-up appointment two months later. (Tr. 445).
On March 11, 2022, Ms. Neal returned to Dr. Sheppard. (Tr. 606). His progress note
recounts she received her first two doses of Ocrevus in October and November 2021 and tolerated
them well with no side effects or reactions. (Tr. 606-07). Dr. Sheppard assessed no subsequent
relapses of her MS. (Tr. 608). Ms. Neal reported continued intermittent episodic weakness and
numbness in her legs, causing her balance difficulties. (Tr. 607). Although she also experienced
intermittent tremors, she reported they did not interfere with her activities. (Id.). She also reported
feeling depressed, that she was in counseling, and it was helping. (Id.).
On September 21, 2022, Ms. Neal followed up with Dr. Sheppard. (Tr. 620). Her blood
tests since starting Ocrevus revealed a concerning drop in her white-blood-cell counts, a similar
result to her previous failed medication regimens. (Tr. 620-21). Dr. Sheppard took her off Ocrevus.
(Tr. 621). He assessed her as stable neurologically with no increased disease activity or

3

Ocrevus is a brand name for ocrelizumab, a monoclonal antibody used to control
the symptoms of multiple sclerosis. Ocrelizumab Injection, MedlinePlus,
http://medlineplus.gov/druginfo/meds/a617026.html (last accessed Sept. 24, 2024).
4

relapses. (Tr. 622). Ms. Neal also reported she fell after her right foot gave out while walking
downstairs, injuring her lower back. (Tr. 621). Dr. Sheppard ordered x-rays of her spine and
prescribed pain medication. (Tr. 623).
On February 6, 2023, Ms. Neal returned to Dr. Sheppard for an in-person examination
and to discuss a new MS medication. (Tr. 630). They decided to wait for her to return to baseline
before trialing any new medication. (See Tr. 632-33). Ms. Neal reported since the last visit, her leg
gave out and she fell again, injuring her elbow. (Tr. 631). She also reported mood problems,
including becoming angry and frustrated easily, controlling her emotions, and crying and laughing
inappropriately. (Id.). Dr. Sheppard identified these symptoms as consistent with a pseudobulbar
affect4 and prescribed medication. (Tr. 632).
On November 12, 2020, Ms. Neal consulted with her treating endocrinologist, Suzanne
Harold, M.D., regarding her Graves’ Disease. (Tr. 503, 505). Her condition is rated as moderate in
severity. (Id.). Ms. Neal had been prescribed methimazole5, though had not been fully compliant
with her medication regimen. (Tr. 503, 505). Subsequent visits between December 2020 and
November 2021 detailed similar findings. (Tr. 488-94, 496-98, 500-02, 573-76, 569-71).

4

Pseudobulbar affect is a condition characterized by episodes of sudden
uncontrollable and inappropriate laughing or crying and typically occurs in people with certain
neurological conditions such as M.S. Pseudobulbar Affect, Mayo Clinic, Pseudobulbar Affect, Mayo
Clinic, http://www.mayoclinic.org/diseases-conditions/pseudobulbar-affect/symptoms-causes/syc20353737?p=1 (last accessed Sept. 24, 2024).
5
Methimazole is a medication used to treat hyperthyroidism. Methimazole, Medline
Plus, http://medlineplus.gov/druginfo/meds/a682464.html (last accessed Sept. 24, 2024).
5

III.

Medical Opinions
On October 9, 2021, Ms. Neal attended a physical examination with Zachary Richens,

D.O., in connection with her disability applications. (Tr. 552-56). Dr. Richens confirmed Ms.
Neal’s diagnoses. (Tr. 556). Dr. Richens observed Ms. Neal could not complete tandem-walking or
bilateral one-foot-stand tests. (Id.). Dr. Richens observed a 3/5 strength on the right hip and 5/5
strength elsewhere. (Tr. 557-58). Dr. Richens opined Ms. Neal had significant MS-related weakness
that prevented her from having full use of her extremities and from bending, stooping, crouching,
and squatting all the time. (Tr. 556).
On November 11, 2021, state agency medical consultant Dimitri Teague, M.D., reviewed
Ms. Neal’s record as part of the initial determination of her disability applications. (Tr. 107-10,
121-24). Dr. Teague divided the opinion into two periods. For the first period (November 19,
2020 disability-onset date to the May 6, 2021 application date), he assessed that Ms. Neal’s Graves’
Disease would not change the previous ALJ’s determination that Ms. Neal was not disabled
because her Graves’ Disease was moderate in severity and she was not fully compliant with her
prescribed medications. (Tr. 107-08, 121-22).
For the second period (after May 6, 2021), Dr. Teague assessed a new RFC for Ms. Neal,
assessing she could lift or carry 20 pounds occasionally and 10 pounds frequently. (Tr. 108, 122).
Regarding postural limitations, Dr. Teague assessed Ms. Neal could never climb ladders, ropes, or
scaffolds and could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, or crawl. (Id.).
Regarding manipulative limitations, Dr. Teague assessed Ms. Neal was limited to frequent
handling and fingering with both upper extremities. (Tr. 109, 123). Regarding environmental
limitations, Dr. Teague assessed Ms. Neal should avoid hazards, such as dangerous machinery,
unprotected heights, and commercial driving. (Id.).
6

On June 21, 2022, state agency medical consultant Mehr Siddiqui, M.D., adopted Dr.
Teague’s opinions for both periods on reconsideration review. (Tr. 135-37, 149-51).
IV.

Relevant Testimonial Evidence
Ms. Neal testified that she lived with her mother, who handled the cooking, cleaning, and

laundry. (Tr. 60, 67). Ms. Neal can only be on her feet for three to four minutes, so she uses a
walker whenever she must stand, including trips as short as visiting the bathroom. (See Tr. 62-63).
Ms. Neal described her typical day consists of lying on the couch with her legs elevated and
watching YouTube. (Tr. 66-67). She does not go out and talks only with her mother and aunt.
(Tr. 67).
Ms. Neal recounted that both her hands shake painfully and go numb at least twice per
day. (Tr. 61-62, 70). The tremors also extend into her arms. (Tr. 70). Her hands stay numb for
various amounts of time, ranging from a few seconds to the entire day. (See Tr. 62). The numbness
makes it hard for her to pick up items. (Tr. 69). She rests after taking medications to allow similar
tremors and numbness in her legs to pass. (See Tr. 61). Ms. Neal also recounted being fatigued.
(Tr. 69). She cannot sleep through the night and struggles to fall asleep. (Tr. 64). She had to stop
her medication for her Graves’ Disease because it affected her ability to breathe properly. (See
Tr. 68-69).
The ALJ posed to the VE a hypothetical individual with Ms. Neal’s age and education who:
(i) can lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; (ii) can sit for
six hours of a normal eight-hour work day and walk for four hours in 30-minute increments,
(iii) can occasionally ramps or stairs; (iv) can never climb ladders, ropes, or scaffolds; (v) can
occasionally balance, stoop, kneel, crouch, and crawl; (vi) can frequently handle and finger
bilaterally, (vii) must avoid all exposure to extreme heat, workplace hazards, such as unprotected
7

heights and dangerous moving machinery, and commercial driving; (viii) can perform simple,
routine tasks, but not assembly-line work, not at a fast-paced production rate, and not with strict
production quotas; and (ix) is limited to superficial interactions with others, meaning no customer
service duties, confrontation, conflict resolution, directing the work of others, persuading or
influencing others, or being responsible for others’ safety. (Tr. 72-73). The VE testified such an
individual could not perform Ms. Neal’s prior work as a home attendant but could perform other
unskilled jobs instead, such as mail clerk, marker, or routing clerk. (Tr. 73).
The ALJ then posed a hypothetical individual with the previously described limitations but
can sit for three hours in an eight-hour workday and walk in five-minute increments and for one
hour total. (Tr. 74). The VE testified such an individual would not be able to sustain competitive
employment. (Id.).
The ALJ then returned to the first hypothetical individual but added the individual would
be off task for 33% of the day on an ongoing basis. (Id.). The VE concluded there would be no
jobs available for such an individual and opined that a person who is off task more than 10% of
the day is unemployable. (Id.).
The ALJ again returned to the first hypothetical individual but further restricted the
individual to occasional (as opposed to frequent) handling and fingering. (Id.). The VE testified no
jobs are available for such an individual. (Id.).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “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

8

result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A).
The Commissioner follows a five-step evaluation process—found at 20 C.F.R. §§ 404.1520
and 416.920—to determine if a claimant is disabled:
1.

Was claimant engaged in a substantial gainful activity?

2.

Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which substantially
limits an individual’s ability to perform basic work activities?

3.

Does the severe impairment meet one of the listed impairments?

4.

What is claimant’s residual functional capacity and can claimant perform
past relevant work?

5.

Can claimant do any other work considering her residual functional capacity,
age, education, and work experience?

Under this five-step sequential analysis, 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 residual functional
capacity (RFC) to perform available work in the national economy. Id. The ALJ considers the
claimant’s RFC, age, education, and past work experience to determine if the claimant could
perform other work. Id. Only if a claimant satisfies each element of the analysis, including inability
to do other work, and meets the duration requirements, is she determined to be disabled.
20 C.F.R. §§ 404.1520(b)-(f), 416.920(b)-(f); see also Walters, 127 F.3d at 529.

9

THE ALJ’S DECISION
At Step One, the ALJ determined Ms. Neal had not engaged in substantial gainful activity
since November 19, 2020. (Tr. 37).6 At Step Two, the ALJ identified Ms. Neal’s MS, Graves’
Disease, and major depression as severe impairments. (Id.). At Step Three, the ALJ found Ms.
Neal’s impairments did not meet the requirements of, or were medically equivalent to, a listed
impairment. (Tr. 37-39).
At Step Four, the ALJ determined Ms. Neal’s RFC as follows:
After careful consideration of the entire record, I find that [Ms. Neal] has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that [Ms. Neal] may stand and/or walk, with normal breaks, for
up to four hours in an eight-hour workday, in increments of no more than thirty
minutes each; [she] may occasionally balance, stoop, kneel, crouch, crawl, climb
ramps and stairs, but may never climb ladders, ropes, or scaffolds; [she] may
frequently handle and finger bilaterally; [she] must avoid concentrated exposure to
extreme heat and must avoid all exposure to unprotected heights, dangerous moving
machinery, and commercial driving; [she] is limited to the performance of simple,
routine tasks, conducted in a work setting free of fast-paced production requirements
or strict production quotas (as is found in assembly line work), performed within a
set routine where major changes are explained in advance and gradually
implemented, which setting requires no more than occasional and superficial
(defined as precluding customer service duties, as well as tasks involving
confrontation, conflict resolution, the direction of, persuasion of, influence of, or
conferral of responsibility upon the claimant for the safety or welfare of, others)
interaction with others. This finding departs from that of the previous decision, in
order to accommodate the present state of the impairments, as documented in the
current evidence.
(Tr. 39-40). The ALJ then found Ms. Neal cannot perform her past relevant work as a home health
aide. (Tr. 46). At Step Five, the ALJ determined jobs exist in significant numbers in the national

6

Although Ms. Neal worked in 2021, her earnings were below the threshold to be
regarded as “substantial gainful activity.” (Tr. 37).
10

economy that Ms. Neal can perform, including mail clerk, marker, and routing clerk. (Tr. 47-48).
Therefore, the ALJ found Ms. Neal was not disabled. (Tr. 48).
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the 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.” Walters, 127 F.3d at 528. 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) (citing 42 U.S.C. § 405(g)). “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 & Human Servs., 966 F.2d
1028, 1030 (6th Cir. 1992). But “a substantiality of evidence evaluation does not permit a selective
reading of the record. Substantiality of evidence must be based upon the record taken as a whole.
Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the
substantiality of evidence must take into account whatever in the record fairly detracts from its
weight.” Brooks v. Comm’r of Soc. Sec., 531 F.App’x 636, 641 (6th Cir. 2013) (cleaned up).
In determining whether substantial evidence supports the Commissioner’s findings, the
court does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). Even if
substantial evidence (or indeed a preponderance of the evidence) supports a claimant’s position,
the court cannot overturn “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). This is so because there is

11

a “zone of choice” within which the Commissioner can act, without fear of court interference.
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citing Baker v. Heckler, 730 F.2d 1147, 1150
(8th Cir. 1984)).
In addition to considering whether substantial evidence supports the Commissioner’s
decision, the court must determine whether proper legal standards were applied. The failure to
apply correct legal standards is grounds for reversal. Even if substantial evidence supports the ALJ’s
decision, the court must overturn when an agency does not observe its own regulations and
thereby prejudices or deprives the claimant of substantial rights. Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 546-47 (6th Cir. 2004).
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) (internal quotations omitted); accord Shrader v. Astrue, No. 11-13000,
2012 WL 5383120, at *6 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is not mentioned, the
Court cannot determine if it was discounted or merely overlooked.”)
DISCUSSION
Ms. Neal argues the ALJ erred at Step Four of the sequential analysis in two ways:
1.

The ALJ failed to support the RFC with substantial evidence when he applied
the wrong standard of review by adopting the findings of the prior ALJ; and

2.

The ALJ’s RFC was contrary to law and the evidence in this matter which
established that the combination of Ms. Neal’s symptoms precluded her from
engaging in substantial gainful activity on a full time and repeated basis.

12

(See ECF #9 at PageID 671). The Commissioner responds that the ALJ conducted a fresh review of
Ms. Neal’s application, and his findings are supported by substantial evidence. (ECF #10 at PageID
702, 704-05). I discuss each in turn.
I.

The ALJ applied the proper legal standard by providing a “fresh look” at Ms. Neal’s
application and crafted an RFC independent of the first determination.
Ms. Neal first argues the ALJ applied the wrong standard of review by adopting the

previous RFC from the November 2020 decision that she was not disabled after March 1, 2019.
(ECF #9 at PageID 677). The Commissioner responds that the ALJ performed a fresh review of
the record and, though the differences between the two RFCs are minor, the ALJ followed the
principles for evaluating a subsequent disability application articulated in the Sixth Circuit’s
decision in Earley v. Comm’r of Soc. Sec., 893 F.3d 929 (6th Cir. 2018). (ECF #11 at PageID 702-04).
In her reply brief, Ms. Neal argues that the Commissioner’s advanced argument is “a post
hoc rationalization regarding the ALJ’s incorrect adoption of the prior ALJ determination.”
(ECF #12 at PageID 710). The court may not accept counsel’s post-hoc rationalization for an
agency’s action. See Revello v. Comm’r of Soc. Sec., No. 5:20-CV-01860, 2021 WL 6064784, at *6
(N.D. Ohio Dec. 22, 2021) (quotation omitted). But Ms. Neal does not explain how the
Commissioner’s arguments were not the basis the ALJ articulated. See McPherson v. Kelsey, 125 F.3d
989, 995-96 (6th Cir. 1997) (“It is not sufficient for a party to mention a possible argument in the
most skeletal way, leaving the court to . . . put flesh on its bones.”). Thus, I consider this argument
waived.
A.

Sixth Circuit caselaw regarding the evaluation of subsequent disability
applications

In Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997), the Sixth Circuit held
that “[w]hen the Commissioner has made a final decision concerning a claimant’s entitlement to
13

benefits, the Commissioner is bound by this determination absent changed circumstances.” Id. at
842. In that case, the ALJ denied the claimant’s initial claim for SSI because the claimant retained
an RFC for sedentary work. Id. at 838. When the claimant re-filed her disability claim, a second
ALJ found the claimant retained an RFC suitable for medium-level work—unlike the sedentary
RFC finding of the first ALJ—and denied the re-filed claim. Id. at 839. After explaining that “[r]es
judicata applies in an administrative law context following a trial type hearing,” the Sixth Circuit
held the second ALJ was bound to the sedentary RFC determination of the first ALJ because there
was no new or additional evidence of an improvement in the claimant’s condition. Id. at 841-42.
The Sixth Circuit concluded: “Just as a social security claimant is barred from relitigating an issue
that has been previously determined, so is the Commissioner.” Id.
The Sixth Circuit clarified the scope of Drummond in Earley. There, the Sixth Circuit held
that res judicata applies to subsequent applications for “the same period of time . . . rejected by the
first application.” Earley, 893 F.3d at 933. But the Sixth Circuit further reasoned:
While we are at it, we should point out that issue preclusion, sometimes called
collateral estoppel, rarely would apply in this setting. That doctrine “foreclos[es]
successive litigation of an issue of fact or law actually litigated and resolved.” [New
Hampshire v. Maine, 532 U.S. 742,] 748-49, 121 S.Ct. 1808. But human health is
rarely static. Sure as we’re born, we age. Sometimes we become sick and sometimes
we become better as time passes. Any earlier proceeding that found or rejected the
onset of a disability could rarely, if ever, have “actually litigated and resolved” whether
a person was disabled at some later date.
All of this helps to explain why Drummond referred to “principles of res judicata”—
with an accent on the word “principles.” 126 F.3d at 841-843. What are those
principles? Finality, efficiency, and the consistent treatment of like cases. An
administrative law judge honors those principles by considering what an earlier judge
found with respect to a later application and by considering that earlier record. Id. at
842; see Albright v. Comm’r of Soc. Sec., 174 F.3d 473, 478 (4th Cir. 1999). This is why
it is fair for an administrative law judge to take the view that, absent new and
additional evidence, the first administrative law judge’s findings are legitimate, albeit
not binding, consideration in reviewing a second application.
14

Id.
Subsequent to Earley, district courts in the Sixth Circuit have disagreed as to whether an
ALJ faced with a prior ALJ’s RFC determination must either (1) simply review the evidence for the
new relevant time period to see if the prior RFC must change to accommodate the new evidence
or (2) review the application with no presumption that the prior RFC was correct. See Najdl v.
Comm’r of Soc. Sec., No. 1:21-CV-01578-SL, 2022 WL 2820413, at *9 (N.D. Ohio July 8, 2022)
(collecting cases), report and recommendation adopted, No. 1:21-CV-1578, 2022 WL 2818444
(N.D. Ohio July 18, 2022).
In two unpublished decisions from this year, the Sixth Circuit has applied Earley, and those
cases suggest neither pole is correct. See Dennis D. v. Comm’r of Soc. Sec., No. 23-3667, 2024 WL
1193662 (6th Cir. Mar. 20, 2024); Gooden v. Comm’r of Soc. Sec., No. 23-3927, 2024 WL 2830817
(6th Cir. June 4, 2024). In Dennis D., the Sixth Circuit rejected both the view that the ALJ must
start the analysis with the prior decision and the view that the ALJ may never consider the prior
decision:
Dennis D. points us to the unpublished district court decision in Nadia A.T. v.
Comm’r of Soc. Sec., No. 3:22-cv-12, 2023 WL 2401723 (S.D. Ohio March 8, 2023).
In Nadia A.T., the district court vacated an ALJ’s RFC determination because it
found that the ALJ did not take a “fresh look” as required by Earley. Id. at *4.
Specifically, the court concluded that although the ALJ acknowledged the new
medical evidence as material, he did not treat the ruling on the prior application as
nonbinding; instead, the ALJ for the subsequent, unadjudicated period, treated the
prior RFC finding “as a mandatory starting place for his own RFC determination.”
Id.; see also Robert K. v. Comm’r of Soc. Sec., No. 3:22-cv-91, 2023 WL 5662785, at *6
(S.D. Ohio Sept. 1, 2023) (“Thus, this Court holds that although ALJs may (and
should) consider a prior ALJ decision, they may not use that prior decision as a
starting point for their analysis or otherwise presume that it will dictate the outcome
of the pending application.”). In doing so, according to the court, the ALJ improperly
took the view that he was compelled to measure the new medical evidence “against
the backdrop” of the prior RFC finding instead of assessing the new evidence on its
own merits.
15

Given the above, the suggestion that an ALJ considering a subsequent application
should not evaluate a claimant’s new records for evidence of a significant change in
relation to a prior valid finding strikes us as an overly broad reading of Earley.
Presuming accuracy is not the same as treating prior findings as binding. [The second
ALJ]’s analysis demonstrates that he did not consider himself bound by [the first
ALJ]’s RFC finding. Rather, he considered it along with Dennis D.’s proffered
evidence pertinent to the unadjudicated period to fashion Dennis D.’s RFC.
Dennis D., 2024 WL 1193662, at *6. The Dennis D. Court further held, “it is the responsibility of
the ALJ reviewing the claim for the later unadjudicated period to determine how much weight to
accord both the prior decision and any newly submitted evidence; this includes the effect of a new
regulatory threshold, if applicable. Id. at *4.
A few months later, the Sixth Circuit again considered whether the second ALJ failed to
give a claimant’s second application an independent “fresh look” in Gooden when the ALJ stated
she “must adopt” the first ALJ’s RFC unless “there is new and material evidence or changed
circumstances” or “there has been a change in the relevant law.” Gooden, 2024 WL 2830817, at *3.
The Sixth Circuit again rejected the notion that the second ALJ errs by using the first ALJ’s
determinations as a starting point when the second application covers a new time period while also
allowing the second ALJ to consider the prior decision if nothing has changed:
[I]f the new application covers a new time period, the second ALJ may abide by the
first ALJ’s determinations as long as the claimant has failed to present “evidence of
a change in condition” or satisfy a “new regulatory threshold.” [Earley, 893 F.3d at
932]. This makes sense because, in such a case, “[n]othing ha[s] changed between the
end of the first application and the beginning of the second one.” Id.
Id. at *4. The Gooden Court cited Dennis D. as highly persuasive and fully consistent with Earley and
found that, like in Dennis D., the second ALJ in Gooden adequately conducted a “fresh look” by
disclaiming reliance on the previous decision, “start[ing] anew at each of the step in the
evaluation,” “balance[ing] new testimonial evidence” against other medical evidence, “focus[ing] on

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medical evidence from the period after the first decision,” and “factoring in new datapoints” to
assess new restrictions. See Gooden, 2024 WL 3593353, at *5; see also Dennis D., 2024 WL 1193662,
at *4-5.
B.

The ALJ’s determination of Ms. Neal’s second application

Here, Ms. Neal’s current application covers a different time period from her previous
application–now alleging a disability-onset date of November 18, 2020, the day after the first
determination. In deciding Ms. Neal’s current application, the ALJ expressly found Ms. Neal had
presented “new and material evidence” to the determination of disability and her past relevant
work such that “it would not be appropriate to be bound, in their entirety, by the findings of” the
first ALJ. (Tr. 34, 35). Because the ALJ determined there was a change in conditions since the first
determination, I look to see if the ALJ treated review of Ms. Neal’s application “as if he was bound
by the prior decision.” See Gooden, 2024 WL 2830817, at *4 (quoting Dennis D., 2024 WL
1193662, at *4).
As stated above, the Sixth Circuit has cited several indicators that an ALJ took a “fresh
look” of the matter: (1) an ALJ disclaiming reliance on the previous decision, (2) “start[ing] anew at
each of the step in the evaluation,” (3) “balance[ing] new testimonial evidence” against other
medical evidence, (4) “focus[ing] on medical evidence from the period after the first decision,” and
(5) “factoring in new datapoints” to assess new restrictions. See Gooden, 2024 WL 3593353 at *5;
see also Dennis D., 2024 WL 1193662 at *4-5. Multiple of these indicators are present here.
First, the ALJ disclaimed reliance on the previous decision both at the administrative
hearing and in his written decision. At the outset of the hearing, the ALJ stated “I have read the
prior decisions that have been issued in your case. Those prior decisions are now history. I will
make a new decision. My decision will be independent.” (Tr. 58). Then, at the start of the written
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decision, the ALJ twice stated that new evidence meant it would be inappropriate to be bound to
the previous ALJ’s determination. (Tr. 34, 35). In the RFC, the ALJ states “this finding departs
from that of the previous decision[] in order to accommodate the present state of the
impairments[] as documented in the current evidence.” (Tr. 40). These disclaimers indicate the
ALJ sought to make an independent decision based on the current evidence.
Second, the ALJ balanced Ms. Neal’s new testimony against new medical evidence when he
added a limitation to avoid extreme heat. (Tr. 40). Ms. Neal testified in the second hearing that
she cannot sleep through the night because of sweating and overheating and that hot weather
aggravates her MS. (Tr. 64). However, the records from the physical examination with Dr. Richens
in October 2021 recount that Ms. Neal reported that cold weather aggravates her MS while warm
weather alleviates her symptoms. (Tr. 552). The ALJ found Ms. Neal’s testimony in the hearing
more persuasive than her previous statement to Dr. Richens. (Tr. 40). That the ALJ expressly
weighed two pieces of evidence, each from after the first decision, against each other and added a
limitation not found in the first RFC both confirm the ALJ actually reviewed the second
application.
Third, the ALJ discussed Ms. Neal’s conditions with citations to medical evidence from
after November 19, 2020 disability-onset date. Regarding Ms. Neal’s Graves’ Disease, the ALJ
noted she had been diagnosed before the disability-onset date, but the ALJ discussed her current
condition recorded in medical reports starting in June 2021. (Tr. 41) (citing Tr. 488, 490, 503,
504-05, 528, 554, 571, 574, 581, 637). The ALJ similarly discussed Ms. Neal’s MS, noting she had
been diagnosed in 2012, but discussed her current condition with spine and brain MRIs taken on
October 15, 2021, and the ALJ found Ms. Neal’s complaints of numbness to be consistent with

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the MRIs. (Id.) (citing Tr. 565). The ALJ also discussed Ms. Neal’s unsuccessful trial with Ocrevus
after the disability-onset date. (Id.) (citing Tr. 443). Regarding Ms. Neal’s depression, the ALJ noted
Ms. Neal was diagnosed by the state agency consultant during her previous application. (Tr. 42)
(citing Tr. 549). But the ALJ noted Ms. Neal’s mental-status examination after the second
application. (Tr. 42-43) (citing Tr. 547-48). The ALJ also noted her positive engagement with a
counselor in 2023 and that she had not taken medications since March 2021. (Id.) (citing Tr. 286,
310, 438, 631). This focus on the evidence of disability from after the first decision also indicates
the ALJ conducted an independent “fresh look” into Ms. Neal’s application.
Ms. Neal argues the ALJ relied on the prior administrative medical findings of Dr. Teague
and Dr. Siddiqui and because those doctors did not conduct a fresh review, but adopted the
previous ALJ’s RFC determination, the second ALJ essentially smuggled the first ALJ’s RFC
determination into the second decision by relying on Dr. Teague’s and Dr. Siddiqui’s medical
opinions. (See ECF #9 at PageID 681-82). The Sixth Circuit faced this exact issue in Dennis D. See
2024 WL 1193662, at *6 (“In particular, Dennis D. asserts that the reviewing physicians failed to
conduct a fresh review of the current medical evidence because they started with the
understanding that they were bound by the prior RFC. And as a result, ALJ Beatty’s reliance on
their determination ‘tainted’ his review.”). There, while not deciding the issue, the Dennis D. Court
provided this guidance:
Dennis D.’s argument, taken to its logical conclusion, would suggest that a
subsequent reviewing physician’s RFC assessment that mirrors a prior RFC finding
should be ignored altogether if the wrong legal standard is announced, despite
evidence of a fresh review. We think such a view is overbroad. As we have previously
observed, “[f]resh review is not blind review.” Earley, 893 F.3d at 934. Accordingly,
“[a] later administrative law judge may consider what an earlier judge did if for no
other reason than to strive for consistent decision making.” Id. Without deciding the
issue, we see no reason why the same would not hold true for subsequent medical
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reviewers—we think it “fair” for them to take into account the RFC assessed for the
previously-adjudicated period. See id. at 933.
Id.
Dr. Teague’s opinion consisted of two portions: one ranging from the disability-onset date
of November 19, 2020 to the application date of May 6, 2021; the other began after the May 6,
2021 application date. Dr. Teague adopted the prior ALJ’s conclusions only in the first period,
concluding:
[Ms. Neal] has new allegation/condition of hypothyroidism. Medical evidence shows
this condition is moderate in severity. However, regarding this condition, it is noted
the claimant is not medication compliant. Considering this condition and the
affects, it would not change the overall ALJ decision and limitations provided by that
decision are still supported.
(Tr. 108, 122). For the period after the May 6, 2021 application date, Dr. Teague assessed a new
RFC without the 30-minute maximum on walking and standing in the prior RFC and for support
cited medical evidence from after the previous ALJ’s determination. (Tr. 108-10, 122-24).
While Dr. Teague adopted the prior RFC for the first period, the record indicates he
conducted a fresh review. Dr. Teague’s factual findings also detail additional medical evidence
from after the November 19, 2020 disability-onset date, including medical records from Ms. Neal’s
treating neurologist and her endocrinologist. (Tr. 101-04, 115-18). Dr. Siddiqui concluded on
reconsideration that Dr. Teague’s findings were consistent and supported by the medical evidence.
(Tr. 135-37, 149-51). Thus, both doctors relied on medical evidence from after the prior
determination, suggesting they independently reviewed Ms. Neal’s application. See Dennis D.,
2024 WL 1193662, at *6-7 (noting use of medical records from after the period of the previous
decision indicates reviewing physicians made independent determinations); see also Carla K. v.
Comm’r of Soc. Sec. Admin., No. 3:23-cv-290, 2024 WL 3593353, at *9 n.6 (S.D. Ohio July 31,
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2024), report and recommendation adopted, 2024 WL 4099926 (S.D. Ohio Sept. 6, 2024). While both
doctors assessed if Ms. Neal’s Graves’ Disease affected the previous RFC, the fact they reached the
same conclusions as the previous ALJ does not necessarily imply those conclusions are unsound.
Even if I accepted Ms. Neal’s argument that Drs. Teague and Siddiqui did not conduct an
independent review, the Sixth Circuit has been skeptical that argument constitutes error under
Earley and more skeptical that such an error could be extended to the ALJ where the ALJ did not
fully adopt the physicians’ opinions. See Dennis D., 2024 WL 1193662, at *7. Here the ALJ noted
that while he could not “defer or give any specific evidentiary weight” to “any prior administrative
medical findings or medical opinions,” the ALJ did find the opinions of Dr. Teague and Dr.
Siddiqui persuasive though they understated Ms. Neal’s limitations in environment, standing, and
walking. (Tr. 44). The ALJ measured the opinions against the record evidence regarding her
Graves’ Disease (Id.) (citing Tr. 344, 435, 565, 574, 581, 607 and 631) and her MS. (Id.) (citing Tr.
435, 438, 504, 552-61, 565, 571, 608, 620, and 631-32). Based on that evidence and Ms. Neal’s
testimony, the ALJ added standing and walking limitations (that Drs. Teague and Siddiqui
removed for the period after May 6, 2021) and added an environmental limitation to avoid heat.
(Tr. 44). This suggests that even if the reviewing physicians had considered themselves bound by
the previous ALJ’s determinations and even if that is error, such error did not extend to the ALJ,
the ultimate decider of the RFC. See Dennis D., 2024 WL 1193662, at *7-8; Gooden, 2024 WL
2830817, at *5-6.
For these reasons, I conclude the ALJ correctly applied Earley’s standard by conducting a
fresh review of Ms. Neal’s second application. The ALJ’s written decision demonstrates the ALJ
focused on medical records and evidence from after the first determination and expressly

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accommodated Ms. Neal’s complaints in the hearing. Consequently, I decline to order remand on
this basis.
II.

The ALJ properly analyzed Ms. Neal’s subjective statements of her symptoms.
In her second argument, Ms. Neal posits the ALJ did not follow Social Security Ruling

(SSR) 16-3p because the ALJ “failed to consider the combined effects of her MS, Graves’ Disease,
major depression, and her related symptoms” and “failed to consider [Ms. Neal]’s problems with
fatigue, balance, and sustainability when forming his RFC.” (See ECF #9 at PageID 687). The
Commissioner responds that the ALJ’s decision shows he considered Ms. Neal’s subjective
statements and her argument amounts to a contention the ALJ should have weighed the evidence
in her favor. (ECF #11 at PageID 704-05).
In evaluating the claimant’s subjective reports of symptoms, SSR 16-3p provides that an
ALJ must consider the claimant’s complaints along with the objective medical evidence, treatment
received, daily activities, and other evidence. 2017 WL 5180304, at *5-8 (Oct. 25, 2017). In
addition, the ALJ uses the factors set forth in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) to
evaluate the claimant’s statements. These are:
1.

A claimant’s daily activities;

2.

The location, duration, frequency, and intensity of pain or other symptoms;

3.

Factors that precipitate and aggravate the symptoms;

4.

The type, dosage, effectiveness, and side effects of any medication an
individual takes or has taken to alleviate pain or other symptoms;

5.

Treatment, other than medication, an individual receives or has received for
relief from pain or other symptoms;

6.

Any measures other than treatment an individual uses or used to relieve pain
or other symptoms; and

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7.

Any other factor concerning an individual’s functional limitations and
restrictions due to pain and other symptoms.

The ALJ need not analyze all seven factors, only those germane to the alleged symptoms. See Cross
v. Comm’r of Soc. Sec., 373 F.Supp.2d 724, 733 (N.D. Ohio 2005).
The ALJ is not required to accept the claimant’s subjective complaints and may discount
subjective testimony when the ALJ finds the complaints are inconsistent with objective medical
and other evidence. Jones, 336 F.3d at 475-76. But the ALJ will not evaluate an individual’s
symptoms based solely on objective medical evidence unless that objective medical evidence
supports a finding that the individual is disabled. SSR 16-3p, 2017 WL 5180304, at *5. Similarly,
the ALJ may not reject an individual’s statements about his symptoms solely because the objective
medical evidence does not substantiate the degree of impairment-related symptoms alleged but
must carefully consider other evidence in the record. See 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(2); see also SSR 16-3p, 2017 WL 5180304, at *6. In reviewing an ALJ’s evaluation of an
individual’s symptoms, the court is limited to evaluating whether the ALJ’s explanations for
discrediting an individual’s testimony are reasonable and supported by substantial evidence in the
record. Jones, 336 F.3d at 476.
Here, the ALJ credited Ms. Neal’s statements about experiencing “numbness in her hands
and feet” and her “deficits affecting her ability to lift, bend, stand, walk, and use her hands.”
(Tr. 40) (citing Tr. 303). Then, as SSR 16-3p and 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3)
instruct, the ALJ reviewed Ms. Neal’s symptoms in light of the objective medical evidence and her
daily activities, medications, and treatment and concluded that the limitations stemming from
these symptoms were not as severe as Ms. Neal alleged.

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First, the ALJ concluded Ms. Neal’s daily activities of sitting on the couch, watching
YouTube, and talking only with her mother and aunt, are not strong evidence of disability. (Tr. 43;
see also Tr. 66-67). To the ALJ, the objective medical evidence did not suggest Ms. Neal’s medical
conditions were the cause of her limited daily activities as her clinical evaluations in August 2021,
March 2022, and February 2023 “have constantly, albeit not universally, reported either mildly
adverse or benign findings.” (See Tr. 41-42) (citing Tr. 444-45, 607-08, 631-32). The ALJ also noted
Ms. Neal described more extensive daily activities in a state agency psychological examination.
(See Tr. 43) (citing Tr. 547). There, Ms. Neal reported “she could attend to her daily hygiene,
perform household chores, shop for groceries, and prepare basic meals but was slowed by physical
pain and often has low motivation.” (Tr. 547).
Second, the ALJ noted Ms. Neal has been prescribed medications for her MS, though they
have not been successful. (Tr. 41). Despite the failed medication trials, the ALJ noted Ms. Neal has
generally reported herself as neurologically stable. (Id.) (citing Tr. 418, 435, 608, 621-22, 631). The
ALJ noted Ms. Neal declined medication treatment for her depression and opted to continue with
counseling. (Tr. 42) (citing Tr. 310, 438, 631).
The ALJ’s analysis articulated multiple factors in SSR 16-3p and 20 C.F.R.
§§ 404.1529(c)(3) and 416.929(c)(3), including Ms. Neal’s daily activities, her medications and
treatment, and the objective medical evidence. The record provides substantial evidence for each
factor.
Contrary to Ms. Neal’s assertion that the ALJ provided no postural or balance limitations,
the RFC has the postural limitation that Ms. Neal “may occasionally balance, stoop, kneel, crouch,
crawl, climb ramps and stairs, but may never climb ladders, ropes, or scaffolds.” (Tr. 39). The RFC

24

also includes a limitation to avoid climbing, dangerous machinery, and unprotected heights to
accommodate balance issues. (Tr. 37, 44). Moreover, the ALJ accommodated Ms. Neal’s
statements of fatigue by incorporating limitations on walking and standing for more than 30
minutes at a time into the RFC. (Tr. 44) (“because of [Ms. Neal’s testimony, transient neurological
and strength deficits, I will keep in place all limitations on standing and walking from the prior
decision.”). Consequently, remand is not required on this basis. To the extent Ms. Neal argues the
record supported her statements of disabling symptoms, such an argument would require me to
review the evidence de novo, make credibility determinations, and reweigh the evidence to come
to a different conclusion than the ALJ, which I cannot do. See Brainard, 889 F.2d at 681.
CONCLUSION
Following review of the arguments presented, the record, and the applicable law, I
AFFIRM the Commissioner’s decision denying disability insurance benefits and supplemental
security income.
Dated: September 24, 2024

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