Blevins v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATION - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's Statement of Errors (Doc. No. 8 ) be GRANTED; 2. The Court REVERSE the Commissioner's non-disability determination; 3. No finding be made as to whether Plaintiff was under a disability within the meaning of the Social Security Act; 4. This matter be REMANDED to the Social Security Administration under Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent with this Decision and Order; and 5. This case be terminated on the Court's docket. Objections to R&R due by 2/20/2024. Signed by Magistrate Judge Caroline H. Gentry on 2/6/2024. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
DEANNA B., 1
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case No. 1:22-cv-00604
District Judge Matthew W. McFarland
Magistrate Judge Caroline H. Gentry

REPORT AND RECOMMENDATION 2
Plaintiff filed applications for Disability Insurance Benefits and Supplemental
Security Income in October 2020. Plaintiff’s claims were denied initially and upon
reconsideration. After a hearing at Plaintiff’s request, the Administrative Law Judge
(ALJ) concluded that Plaintiff was not eligible for benefits because she was not under a
“disability” as defined in the Social Security Act. The Appeals Council denied Plaintiff’s
request for review. Plaintiff subsequently filed this action.
Plaintiff seeks an order remanding this matter to the Commissioner for the award
of benefits or, in the alternative, for further proceedings. The Commissioner asks the
Court to affirm the non-disability decision. For the reasons set forth below, it is

See S.D. Ohio General Order 22-01 (“The Committee on Court Administration and Case Management
of the Judicial Conference of the United States has recommended that due to significant privacy concerns
in social security cases federal courts should refer to claimants only by their first names and last
initials.”).
1

See 28 U.S.C. § 636(b)(1). The notice at the end of this opinion informs the parties of their ability to file
objections to this Report and Recommendations within the specified time period.
2

recommended that the Court REVERSE the Commissioner’s decision and REMAND for
further proceedings.
I.

BACKGROUND
Plaintiff asserts that she has been under a disability since April 10, 2019. At that

time, she was forty-eight years old. Accordingly, Plaintiff was considered a “younger
person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). 3
Plaintiff subsequently turned age fifty and changed her age category to a “person closely
approaching advanced age.” See 20 C.F.R. § 404.1563(d). Plaintiff has a “high school
education and above.” See 20 C.F.R. § 404.1564(b)(4).
The evidence in the Administrative Record (“AR,” Doc. No. 7) is summarized in
the ALJ’s decision (“Decision,” Doc. No. 7-2 at PageID 43-65), Plaintiff’s Statement of
Errors (“SE,” Doc. No. 8), the Commissioner’s Memorandum in Opposition (“Mem. In
Opp.,” Doc. No. 10), and Plaintiff’s Reply Memorandum (“Reply,” Doc. No. 11). Rather
than repeat these summaries, the Court will discuss the pertinent evidence in its analysis
below.
II.

STANDARD OF REVIEW
The Social Security Administration provides Disability Insurance Benefits and

Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 402, 423(a)(1), 1382(a). The term “disability” means “the inability to do any

The remaining citations will identify only the pertinent Disability Insurance Benefits Regulations, as
they are similar in all relevant respects to the corresponding Supplemental Security Income Regulations.

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2

substantial gainful activity by reason of any medically determinable physical or mental
impairment 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).
This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:
“[W]hether the ALJ applied the correct legal standards and whether the findings of the
ALJ are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 406 (6th Cir. 2009); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”).
“Unless the ALJ has failed to apply the correct legal standards or has made findings of
fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.
Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may
not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.” Id.
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation omitted). This limited standard of review does not permit the Court to weigh the
evidence and decide whether the preponderance of the evidence supports a different
conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is
supported by substantial evidence, which “means—and means only—‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(citation omitted). This standard “presupposes that there is a zone of choice within which
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the decisionmakers can go either way, without interference by the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Thus, the Court may be required to affirm the
ALJ’s decision even if substantial evidence in the record supports the opposite
conclusion. Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009). “[E]ven if supported by substantial evidence, ‘a 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.’” Id. (citations omitted). Such an error of law will require reversal even
if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc. Sec.,
896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).
III.

FACTS
A.

The ALJ’s Factual Findings

The ALJ was tasked with evaluating the evidence related to Plaintiff’s applications
for benefits. In doing so, the ALJ considered each of the five sequential steps set forth in
the Social Security Regulations. See 20 C.F.R. § 404.1520. The ALJ made the following
findings of fact:
Step 1:

Plaintiff has not engaged in substantial gainful activity since April
10, 2019, the alleged onset date.

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Step 2:

She has the severe impairments of status post-bilateral knee
replacement, lumbar degenerative disc disease, depression, and posttraumatic stress disorder.

Step 3:

She does not have an impairment or combination of impairments
that meets or equals the severity of one in the Commissioner’s
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

Her residual functional capacity (RFC), or the most she can do
despite her impairments, see Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 239 (6th Cir. 2002), consists of light work as defined in 20
C.F.R. § 404.1567(b), subject to the following limitations: [S]he can
occasionally climb stairs and ramps, with no climbing of ladders,
ropes, or scaffolds, occasionally balance as defined in the Selected
Characteristics of Occupations of the Dictionary of Occupational
Titles, and occasionally stoop, kneel, crouch, and crawl. [Plaintiff]
must avoid concentrated exposure to dangerous machinery and to
unprotected heights. [Plaintiff] can have no requirement to maintain
a production-rate pace.
She is unable to perform any of her past relevant work.

Step 5:

Considering Plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that she can perform.

(Decision, Doc. No. 7-2 at PageID 45-64.) These findings led the ALJ to conclude that
Plaintiff does not meet the definition of disability and so is not entitled to benefits. (Id. at
PageID 65.)
B.

State Agency Psychological Consultants

State agency psychological consultant Kari Kennedy, Psy.D. completed a mental
residual functional capacity (RFC) assessment in February 2021. (AR, Doc. No. 7-3 at
PageID 117-118, 121-24.) Dr. Kennedy found mild impairment in the “B Criteria” areas
of understanding, remembering, or applying information and adapting or managing
oneself. (Id. at PageID 117.) She found no impairment in the area of interacting with
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others and moderate impairment in the area of concentrating, persisting, or maintaining
pace. (Id.) In terms of functional limitations, Dr. Kennedy opined:
The evidence suggests that [Plaintiff] can understand, remember, and carry
out detailed, but not complex tasks. [Plaintiff] can relate on a superficial
and ongoing basis with coworkers and supervisors. [Plaintiff] can attend to
tasks for a sufficient period to complete tasks. [Plaintiff] can manage the
stresses involved with detailed work-related tasks.
(Id. at PageID 124.) Donna Unversaw, Ph.D. reviewed the updated record at the
reconsideration level in June 2021. (Id. at PageID 153-57.) Dr. Unversaw indicated that
she affirmed Dr. Kennedy’s February 2021 assessment. (Id.)
The ALJ did not specifically address the persuasiveness of the state agency
psychological consultants’ opinions. (Decision, Doc. No. 7-2 at PageID 62-63.) Instead,
the ALJ merely summarized the opinions of the state agency medical and psychological
consultants. (Id.) The ALJ combined his analyses of the medical and psychological
opinions and concluded that the “state agency determination is consistent with and
supported by the record in part . . . .” (Id. at PageID 63.) He adopted the physical
limitations for a range of light work with postural and environmental limitations that the
state agency medical consultants assessed. (Id.). But the ALJ did not adopt the mental
limitations assessed by the psychological consultants because, he summarily concluded,
“the record does not support further mental limitation, other than limiting [Plaintiff] to no
work that requires a production-rate pace, given her anxiety and any difficulties with
concentration or drowsiness she may experience.” (Id.)

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IV.

LAW AND ANALYSIS
Plaintiff asserts that the ALJ failed to properly evaluate the opinions of the state

agency psychological consultants for consistency and supportability as required by 20
C.F.R. § 404.1520c. (SE, Doc. No. 8 at PageID 1426.) For the reasons discussed below,
Plaintiff’s assertion is well-taken and the ALJ’s decision should be reversed.
A.

Applicable Law

Social Security regulations require ALJs to adhere to certain standards when
evaluating medical opinions. ALJs must analyze the persuasiveness of “all of the medical
opinions” in the record. 20 C.F.R. § 404.1520c (emphasis added). A “medical opinion” is
a “statement from a medical source about what [an individual] can still do despite [her]
impairment(s)” and whether the individual has one or more impairment-related
limitations or restrictions. 20 C.F.R. § 404.1513(a)(2). By contrast, a statement from a
medical source about an issue reserved to the Commissioner—such as whether an
individual is disabled—need not be addressed by the ALJ. 20 C.F.R. § 404.1520b(c)(3).
Because Plaintiff filed her claim after March 27, 2017, the new regulations for
evaluating medical opinion evidence applied. Under these regulations, the ALJ “will not
defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) or prior administrative medical finding(s) . . . .” 20 C.F.R.
§ 404.1520c(a). Instead, the ALJ must evaluate the persuasiveness of each medical
opinion and prior administrative medical finding by considering the following factors: (1)
supportability; (2) consistency; (3) relationship with the plaintiff; (4) specialization; and

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(5) any other factor “that tend[s] to support or contradict a medical opinion or prior
administrative medical finding.” 20 C.F.R. § 404.1520c(c).
Significantly, because the first two factors—supportability and consistency—are
the “most important” ones, the ALJ “will explain” how he or she considered them. 20
C.F.R. § 404.1520c(b)(2) (emphasis added). 4 As to the first factor (supportability), “[t]he
more relevant the objective medical evidence and supporting explanations presented by a
medical source are to support his or her medical opinion(s) . . . the more persuasive the
medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). As to the second factor
(consistency), “[t]he more consistent a medical opinion(s) . . . is with the evidence from
other medical sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).
B.

The ALJ Reversibly Erred When Evaluating The Findings Of The
State Agency Psychological Consultants.

The ALJ erred by failing to address the supportability of the State agency
psychological consultants’ opinions, as is required by the applicable regulations.
Additionally, the ALJ’s findings regarding the consistency of the consultants’ opinions
are not supported by substantial evidence. For both of these reasons, the undersigned
Magistrate Judge recommends that the Court reverse and remand the ALJ’s decision.

4
By contrast, the ALJ “may, but [is] not required to,” explain the consideration given to the remaining factors. 20
C.F.R. § 404.1520c(b)(2).

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1.

The ALJ failed to consider the supportability of the state agency
psychologists' opinions.

The ALJ was required to explain his analysis of the supportability and consistency
factors when considering the persuasiveness of the state agency psychological
consultants’ opinions. 20 C.F.R. § 404.1520c(b)(2). Supportability requires the ALJ to
examine “objective medical evidence and supporting explanations presented by a medical
source . . . to support his or her medical opinion(s).” 20 C.F.R. § 404.1520c(c)(1).
Consistency requires the ALJ to consider “the evidence from other medical sources and
nonmedical sources.” 20 C.F.R. § 404.1520c(c)(2). The ALJ appeared to conflate these
requirements and did not address the supportability factor. The Court therefore concludes
that the ALJ’s decision did not comply with Section 404.1520c(b)(2).
As noted above, the ALJ combined his analyses of the state agency medical and
psychological consultants’ opinions. (Decision, Doc. No. 7-2 at PageID 63.) The ALJ
concluded that the psychological opinions are “consistent with and supported by the
record in part; however, the record does not support further mental limitation, other than
limiting [Plaintiff] to no work that requires a production-rate pace, given her anxiety and
any difficulties with concentration or drowsiness she may experience.” (Id.)
Relying on the emphasized statement, Defendant argues that the ALJ addressed
both supportability and consistency in his decision (Mem. In Opp., Doc. No. 10 at
PageID 1442.) But in fact he did not do so. To analyze the supportability factor required
by 20 C.F.R. § 404.1520c(c)(1), the ALJ was required to consider the psychological
consultants’ own supporting explanations and summaries of the evidence. However, the
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ALJ’s reference to “the record” appears to mean evidence in the record from other
medical and nonmedical sources, which is considered under the consistency factor. The
ALJ’s failure to consider the supportability factor when discounting the psychological
opinions is a procedural violation that warrants reversal.
2.

The ALJ’s consistency analysis is unsupported by substantial
evidence.

Although the ALJ concluded that the state agency psychological consultants’
opinions were “consistent with and supported by the record in part,” he did not adopt
their suggested mental limitations. (Decision, Doc. No. 7-2 at PageID 63.) Instead, the
ALJ concluded that “the record does not support further mental limitation, other than
limiting [Plaintiff] to no work that requires a production-rate pace, given her anxiety and
any difficulties with concentration or drowsiness she may experience.” (Id.) Construing
this statement as constituting the ALJ’s consistency analysis, the ALJ’s conclusions are
unsupported by substantial evidence.
Significantly, the ALJ’s one-sentence explanation for his conclusions about the
psychological evidence—namely, his reference to “anxiety and any difficulties with
concentration or drowsiness [plaintiff] may experience”—only explains his decision to
include a mental limitation in the RFC for no work that requires a production-rate pace.
(AR, Doc. No. 7-2 at PageID 63.) This statement does not explain, directly or indirectly,
the ALJ’s conclusion that “the record does not support further mental limitation.” (Id.)
Nor does it provide any justification for declining to adopt the specific mental limitations
recommended by the state agency psychological consultants. (Id.)
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Defendant contends that the ALJ’s admittedly “concise” explanation is supported
by substantial evidence and that “the ALJ’s entire decision allows for meaningful judicial
review.” (Mem. In Opp., Doc. No. 10 at PageID 1442, 1446.) According to Defendant:
“[T]he ALJ explained how the evidence supported the [RFC] during his Finding No. 4
discussion and his Finding No. 3 discussion of the “paragraph B” criteria.” (Id. at PageID
1443.)
The Sixth Circuit has held that meaningful judicial review exists—even if the ALJ
provided only a cursory or sparse analysis—if the ALJ made sufficient factual findings
elsewhere in the decision that support his conclusion. See Bledsoe v. Barnhart, 165 F.
App’x 408, 411 (6th Cir. 2006) (looking to findings elsewhere in the decision to affirm
the ALJ’s step three analysis, and finding no need for the ALJ to “spell out every fact a
second time”); Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 365-66 (6th Cir. 2014)
(finding that the ALJ made “sufficient factual findings elsewhere in his decision to
support his conclusion at step three). This principle applies to opinion evidence analysis.
E.g., Crum v. Comm'r of Soc. Sec., 660 F. App'x 449, 457 (6th Cir. 2016). The Court will
therefore consider the ALJ’s factual findings elsewhere in the decision to consider
whether his evaluation of the consistency of the state agency psychological consultants’
opinions is supported by substantial evidence.
When the ALJ evaluated Plaintiff’s mental impairments under the “paragraph B”
criteria at Step Three, he found that Plaintiff has no limitation in the ability to interact
with others. (Decision, Doc. No. 7-2 at PageID 48.) The ALJ explained:

11

She reported spending very little time with others, noting she goes to her
sister’s home on a regular basis, monthly (Ex. 4E/5). She reported
sometimes she can have problems getting along with friends, family,
neighbors, and others, but reported she gets along “great” with authority
figures and usually has always been the “teacher’s pet” (Ex. 4E/6-7).
[Plaintiff] reported her depression makes her not want to do much and
when she is home from work and in pain, she wants to put on her pajamas
and not go anywhere (Ex. 4E/6). [Plaintiff’s] sister reported [Plaintiff’s]
interaction with her daughter is “very dysfunctional” and she reported
[Plaintiff] has “destroyed” her relationships with their other sister, their
step-mother, and her three adult nieces, with the record reflecting an issue
between the sisters as discussed in counseling (Ex. 3E/3, 8). The evidence
supports no limitation in this area.
(Id.) The ALJ’s conclusion is unsupported by substantial evidence because nearly all the
evidence that he described—other than Plaintiff’s statement that she gets along well with
authority figures—shows that Plaintiff does in fact have difficulty interacting with others.
Moreover, the ALJ cited only Plaintiff’s subjective statements and ignored
significant objective evidence that arguably supports Plaintiff’s limitation in this area. As
discussed more fully below, Plaintiff’s mental status examinations showed some normal
findings, such as a cooperative and friendly attitude, a calm or appropriate mood, normal
eye contact, and appropriate dress and grooming. (See AR, Doc. No. 7-8, Doc. No. 7-9,
Doc. No. 7-10, Doc. No. 7-17, Doc. No. 7-18.) Often, however, Plaintiff’s providers also
documented abnormalities that included a dysthymic mood, a blunted or flat affect,
pressured speech, and poor insight and judgment. In addition, they documented anxious,
frustrated, stressed, and/or sad moods during nearly every examination since August
2020. (AR, Doc. No. 7-8 at PageID 562-63, 567-68, 577-78, 582-83, 587-88, 592-93,
597-98, 609-10, 619-20, 624, 629-30, 639-40, 684-85, 689-90, 700-01, 705-06, 710-11,
719-20, 724-25, 946, 957-58, 962-63, 967-68, 972-73; Doc. No. 7-9 at PageID 978-79,
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984-85, 990-91; Doc. No. 7-10 at PageID 1011-12, 1016-17, 1027-28; Doc. No. 7-17 at
PageID 1263-64, 1268-69, 1273-74; Doc. No. 7-18 at PageID 1289-90, 1323-24, 132728, 1331-32, 1335-36, 1339-40, 1343-44, 1351-52, 1359-60, 1375-76, 1379-80, 1383-84,
1387-88.) These mood abnormalities could reasonably be expected to have a negative
impact on Plaintiff’s ability to interact with others. Therefore, the ALJ’s conclusion that
the evidence supports “no limitation” in the area of interacting with others is unsupported
by substantial evidence.
The ALJ also ignored substantial evidence regarding Plaintiff’s mental
impairments in the RFC analysis. The ALJ provided a detailed summary of Plaintiff’s
subjective complaints in the disability reports and at the hearing. (Decision, Doc. No. 7-2
at PageID 51-53.) The ALJ then summarized the medical evidence regarding Plaintiff’s
physical and mental impairments. (Id. at PageID 54-61.) But inexplicably, the ALJ’s
summary ignored almost all of the objective mental status findings in the record. (Id.)
The ALJ cited to only one examination that showed abnormal objective mental status
findings: namely, a primary care visit where Plaintiff was “noted to be anxious.” (Id. at
PageID 60.) And he cited only two examinations—both performed during primary care
visits and not during the mental health treatment sessions—where Plaintiff’s providers
documented normal objective mental status findings. (Id. at PageID 54-55.)
The ALJ’s analysis did not cite any of the objective mental status findings from
Plaintiff’s mental health providers in the Meridian Mental Health Services progress notes.
Although the ALJ referenced a few of the mental health progress notes in his summary of
the medical evidence, he limited his discussion to subjective complaints, reports of daily
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activities, diagnoses, and prescribed medications. (Decision, Doc. No. 7-2 at PageID 5461.) For example, the ALJ acknowledged the diagnoses and medications that Amy
Abuasabeh, N.P. documented during a December 2020 medication management visit, 5
but disregarded the mental status abnormalities that Nurse Abuasabeh documented:
namely, a dysthymic mood and poor insight and judgment. (Compare Decision, Doc. No.
7-2 at PageID 56, with AR, Doc. No. 7-7 at PageID 713.)
The ALJ therefore did not discuss numerous mental health records that justify the
mental limitations identified by the state agency psychological consultants. For example,
the ALJ failed to mention the initial evaluation at Meridian Mental Health Services on
August 26, 2020, where Plaintiff reported a history of prior abuse and complained of
nightmares, flashbacks, intrusive thoughts, anxiety, a startle reflex, poor sleep, and
hypervigilance. (AR, Doc. No. 7-7 at PageID 554.) A mental status examination noted
that Plaintiff was calm, cooperative, and friendly, but also documented a blunted affect
and a depressed, stressed, and anxious mood. (Id. at PageID 554, 557.) In follow-up visits
through August 2021, Plaintiff often presented with a cooperative and friendly attitude,
normal eye contact, appropriate dress and grooming, and some happy or calm moods;
nevertheless, Plaintiff’s providers consistently documented anxious, frustrated, stressed,
and/or sad mood symptoms on almost every occasion. (AR, Doc. No. 7-8 at PageID 56263, 567-68, 577-78, 582-83, 587-88, 592-93, 597-98, 609-10, 619-20, 624, 629-30, 639-

The ALJ states that this medication management appointment occurred in November of 2020, but the
record that the ALJ cites is dated December 2, 2020. (Compare AR, Doc. No. 7-2 at PageID 56, with
(AR, Doc. No. 7-7 at PageID 712-14.)

5

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40, 684-85, 689-90, 700-01, 705-06, 710-11, 719-20, 724-25, 946, 957-58, 962-63, 96768, 972-73; Doc. No. 7-9 at PageID 978-79, 984-85, 990-91; Doc. No. 7-10 at PageID
1011-12, 1016-17, 1027-28; Doc. No. 7-17 at PageID 1263-64, 1268-69, 1273-74; Doc.
No. 7-18 at PageID 1289-90, 1323-24, 1327-28, 1331-32, 1335-36, 1339-40, 1343-44,
1351-52, 1359-60, 1375-76, 1379-80, 1383-84, 1387-88.) The ALJ failed to mention any
of these findings.
Indeed, Plaintiff’s objective mental status findings were only essential normal
during one visit in March 2021. (AR, Doc. No. 7-18 at PageID 1347-48.) Plaintiff’s
providers documented mood issues and objective examination abnormalities on several
other occasions. For example, Nurse Abuasabeh reported that Plaintiff presented with a
blunted affect and a depressed mood during a psychiatric evaluation in September 2020.
(AR, Doc. No. 7-7 at PageID 604.) Nurse Abuasabeh also noted that Plaintiff complained
of poor motivation, poor focus, frustration, agitation, anger, sadness, and anxiety. (Id.) In
January 2021, Plaintiff’s responses to an Adult Needs and Strengths Assessment
indicated mild interpersonal problems and emotional dysregulation, as well as moderate
to severe depression, anxiety, impulse control, intrusions, and anger control. (AR, Doc.
No. 7-18 at PageID 1369.) Plaintiff’s provider documented an unremarkable yet anxious
mood, a flat affect, pressured speech, and fair insight and judgment. (Id. at PageID 1371.)
Further, although Plaintiff stated during a May 2021 medication management visit
that her medications were “doing well,” Nurse Abuasabeh documented a dysthymic and
anxious mood and affect, poor attention and concentration (albeit with intact recent and
remote memory), and poor insight and judgment. (AR, Doc. No. 7-10 at PageID 1004.)
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Plaintiff exhibited an unremarkable mood but a flat affect during an August 2021 mental
status examination. (AR, Doc. No. 7-18 at PageID 1284.) The ALJ disregarded all of
these findings, too.
In sum, it is true that Plaintiff’s mental status examinations showed some normal
findings, such as a cooperative and friendly attitude, a calm or appropriate mood, normal
eye contact, and appropriate dress and grooming. But Plaintiff’s providers consistently
documented abnormalities such as a dysthymic mood, a blunted or flat affect, pressured
speech, and poor insight and judgment—as well as anxious, frustrated, stressed, and/or
sad moods. The ALJ omitted this evidence not only from the RFC analysis, but also from
the “Paragraph B” analysis at Step 3. (Decision, Doc. No. 7-2 at PageID 48.)
Based upon its review of the administrative record, the undersigned Magistrate
Judge concludes that the ALJ’s summary of the evidence does not acknowledge or
address a significant amount of evidence that supports Plaintiff’s mental health
complaints. The Court recognizes that the ALJ need not discuss each and every piece of
evidence and finding in the record. See Smith-Johnson v. Comm'r of Soc. Sec., 579 F.
App’x 426, 437 n.11 (6th Cir. 2014). Nevertheless, the ALJ’s “factual findings as a
whole” must show he “implicitly resolved the conflicts in the evidence.” Id.
Here, the ALJ’s failure to acknowledge nearly any of the abnormal mental status
findings leads the Court to conclude that the ALJ did not resolve the conflicts in the
evidence. In addition, the ALJ’s apparent failure to consider significant evidence that
contradicts his conclusions signifies an impermissibly selective review of the record. See
Gentry, 741 F.3d at 723-23 (citing Minor v. Comm'r of Soc. Sec., 513 F. App’x 417, 435
16

(6th Cir. 2013) (reversing where the ALJ “cherry-picked select portions of the record”
rather than doing a proper analysis); Germany–Johnson v. Comm'r of Soc. Sec., 313 F.
App’x 771, 777 (6th Cir. 2008) (finding error where the ALJ was “selective in parsing
the various medical reports”)). For both reasons, the undersigned Magistrate Judge
concludes that the ALJ’s factual findings regarding the consistency factor are not
supported by substantial evidence.
3.

The ALJ’s error is not harmless.

Defendant argues that any error in the ALJ’s evaluation of the state agency
psychological consultants’ opinions is harmless. Specifically, Defendant contends that
“[e]ven if Plaintiff had additional mental limitations, she would still be able to perform
other work. The vocational expert testified that there would be jobs available for an
individual limited to understanding, remembering, and carrying out simple instructions;
and occasional interaction with the public, coworkers, and supervisors.” (Mem. In Opp.,
Doc. No. 10 at PageID 1446, n.9.) This assertion is not well-taken because the vocational
expert did not testify that jobs would be available to an individual with the ALJ’s RFC
and the additional limitations opined to by the state agency psychological consultants.
The ALJ posed the following hypothetical question to the vocational expert at the
January 2022 hearing:
[L]et’s assume we have a hypothetical individual of [Plaintiff’s] age,
education and work experience and for this hypothetical individual can
occasional – I’m sorry, can perform light work as defined in the
regulations. Occasionally climb stairs and ramps, no climbing of ladders,
ropes, and scaffolds. The hypothetical individual can occasionally balance
to define some of the characteristics of occupations of the [Dictionary of
Occupational Titles] with occasional stooping, kneeling, crouching, and
17

crawling. But this individual should avoid concentrated exposure to
dangerous machinery and unprotected heights. This hypothetical individual
can understand, remember to carry out simple instructions. Can engage on
an occasional basis with – in terms of interaction with the general public,
coworkers and supervisors.
(AR, Doc. No. 7-2 at PageID 100.)
The vocational expert responded that such an individual would be unable to
perform Plaintiff’s past relevant work but could perform the following light, unskilled
jobs: Routing Clerk, Dictionary of Occupational Titles (DOT) code 222.687-022,
approximately 98,000 positions nationally; Parking Clerk, DOT code 209.587-034,
approximately 126,000 positions nationally; and Collator Operator, DOT code 208.685010, approximately 32,000 positions nationally. (Id. at PageID 101.) The vocational
expert further testified that if the hypothetical individual could perform only sedentary
work—with all other limitations remaining the same—such an individual could perform
the following sedentary, unskilled jobs: Toy Stuffer, DOT code 731.685-010,
approximately 24,000 positions nationally; Final Assembler, DOT code 713.687-018,
approximately 22,000 positions nationally; and Document Preparer, DOT code 249.587018, approximately 26,000 positions nationally. (Id. at PageID 101-02.)
The ALJ posed an additional hypothetical question to the vocational expert. (AR,
Doc. No. 7-2 at PageID 103.) The ALJ referenced the first hypothetical but substituted
the mental limitations that he posed in that hypothetical with the sole mental limitation
that he included in the RFC:
I’m going to circle back to the hypothetical. If – I’m looking at my notes –
if the hypothetical individual – let’s just say – I’ll just give you the
hypothetical. Its [sic] secretarial work, real light work is where it started
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with everything being the same what are the mental limitations if we were
simply just to say that this hypothetical individual could – would have no
requirements to maintain a production rate pace, with that being the only
limitation. So, you could strike the – like the other limitations, mental
limitations, as if like no requirement to make a production rate pace such as
in assembly line work.
(Id.) The vocational expert responded that the hypothetical individual could perform all
three of the light jobs provided in response to the first hypothetical. (Id.) The ALJ also
asked the vocational expert whether the individual could perform the sedentary jobs with
this additional mental restriction. (AR, Doc. No. 7-2 at PageID 103). The vocational
expert testified that the Document Preparer and Toy Stuffer jobs would remain, but that
the hypothetical individual would be unable to perform the Final Assembler job. (Id. at
PageID 103-04.)
Thus, the first hypothetical included two mental limitations (“can understand [and]
remember to carry out simple instructions” and “can engage on an occasional basis with –
in terms of interaction with the general public, coworkers and supervisors”), and the
second hypothetical omitted those two mental limitations and included a third mental
limitation (no “production rate pace”). Therefore, the ALJ did not ask the vocational
expert to consider the cumulative effects of the mental limitations identified in each
hypothetical question. Neither the parties nor this Court can determine whether the
representative jobs and job numbers described in the vocational expert’s testimony could
apply to an individual with all three of these mental limitations. 6 Defendant’s argument

The Court notes that the state agency psychological consultants opined that Plaintiff could relate on only
a “superficial and ongoing basis” with coworkers and supervisors. (AR, Doc. No. 7-3 at PageID 124,

6

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therefore “invit[es] this court to perform a duty which is reserved to the ALJ. It is the
ALJ, not the court, who must determine what jobs can be performed by a plaintiff in light
of her limitations.” Runyon v. Comm'r of Soc. Sec., No. 2:20-CV-3820, 2021 WL
3087639, at *6 (S.D. Ohio July 22, 2021) (Vascura, M.J.), report and recommendation
adopted, No. 2:20-CV-3820, 2021 WL 3489615 (S.D. Ohio Aug. 9, 2021) (Watson, D.J.)
(citation omitted). For these reasons, the ALJ’s error is not harmless.
There is another reason why the ALJ’s error is not harmless. As discussed above,
the ALJ’s factual findings regarding Plaintiff’s mental impairments are not supported by
substantial evidence. Because the Court cannot discern whether the ALJ ignored,
rejected, or misconstrued a substantial body of medical evidence that supports Plaintiff’s
claims of disability, the Court cannot meaningfully review the ALJ’s decision. See Hurst
v. Sec’y of Health and Hum. Servs., 753 F.2d 517 (6th Cir. 1985) (“It is more than merely
‘helpful’ for the ALJ to articulate reasons . . . for crediting or rejecting particular sources
of evidence. It is absolutely essential for meaningful appellate review.”) (citation
omitted). An ALJ’s error cannot be excused as harmless if it prejudices the claimant on
the merits or deprives him of substantial rights. Rabbers, 582 F.3d at 654. Here, the Court
finds that the ALJ’s error was not harmless because it prejudiced Plaintiff on the merits.
Therefore, reversal and remand is warranted.

156-57) (emphasis added.) But the hypothetical posed by the ALJ included a limitation for occasional
interaction with the general public, coworkers, and supervisors. (AR, Doc. No. 7-2 at PageID 100)
(emphasis added.) Because the VE’s testimony did not consider the cumulative effects of the RFC mental
limitation and any social limitation, the Court need not address whether this distinction is material.

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VI.

REMAND
A remand is appropriate when the ALJ’s decision is unsupported by substantial

evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746.
Under Sentence Four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under Sentence Four may result in the need for further proceedings or an immediate
award of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041
(6th Cir. 1994). The latter is warranted where the evidence of disability is overwhelming
or where the evidence of disability is strong while contrary evidence is lacking. Faucher
v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is neither overwhelming nor strong while contrary evidence is
lacking. Faucher, 17 F.3d at 176. However, the undersigned Magistrate Judge concludes
that Plaintiff is entitled to an order remanding this case to the Social Security
Administration pursuant to Sentence Four of Section 405(g) for the reasons stated above.
On remand, the ALJ should further develop the record as necessary, particularly as to the
opinion evidence and Plaintiff’s mental impairments, and evaluate the evidence of record
under the applicable legal criteria mandated by the Commissioner’s regulations and
rulings and governing case law. The ALJ should evaluate Plaintiff’s disability claim
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under the required five-step sequential analysis to determine anew whether Plaintiff was
under a disability and whether her application for Disability Insurance Benefits and
Supplemental Security Income should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s Statement of Errors (Doc. No. 8) be GRANTED;

2.

The Court REVERSE the Commissioner’s non-disability determination;

3.

No finding be made as to whether Plaintiff was under a “disability” within
the meaning of the Social Security Act;

4.

This matter be REMANDED to the Social Security Administration under
Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent
with this Decision and Order; and

5.

This case be terminated on the Court’s docket.
s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days if this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F). Such objections shall
specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is
based in whole or in part upon matters occurring of record at an oral hearing, the
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objecting party shall promptly arrange for the transcription of the record, or such portions
of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s
objections within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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