Haspel v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's Statement of Errors (Doc. No. 10 ) be GRANTED; 2. The Court REVERSE the Commissioner's non-disability determination; 3. No finding be made as to whether Plaint iff 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 9/13/2024. Signed by Magistrate Judge Caroline H. Gentry on 8/30/2024. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION (COLUMBUS)
TRICIA H., 1
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

:
:
:
:
:
:
:
:
:

Case No. 2:23-cv-02090
District Judge James L. Graham
Magistrate Judge Caroline H. Gentry

REPORT AND RECOMMENDATIONS 2
Plaintiff filed applications for Disability Insurance Benefits and Supplemental
Security Income in September 2019. 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 under a “disability” as defined in the Social
Security Act prior to October 10, 2020 but became disabled on that date. After the
Appeals Council denied Plaintiff’s request for review, Plaintiff filed an action with this
Court. 3 The Court remanded the case to the Commissioner under Sentence Four of 42
U.S.C. § 405(g), pursuant to a joint stipulation by the parties. The Appeals Council

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

3

Assigned to District Judge Michael H. Watson, Case Number 2:21-cv-05048.

remanded the case pursuant to the District Court’s order. The same ALJ held another
hearing and again concluded that Plaintiff was disabled until October 10, 2020. The
Appeals Council denied Plaintiff’s request for review of that decision, and 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 partially favorable decision. For the reasons set forth below, it is
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 July 20, 2016. At that

time, she was forty-five years old. Accordingly, Plaintiff was considered a “younger
person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). 4
On October 10, 2020, she changed 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. 7-12 at PageID 2315-41), Plaintiff’s Statement
of Errors (“SE,” Doc. No. 10), and the Commissioner’s Memorandum in Opposition

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.

4

2

(“Mem. In Opp.,” 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
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:
“whether 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
3

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
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).

4

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 July 20,
2016, the alleged onset date.

Step 2:

She has the severe impairments of degenerative disc disease of the
lumbar spine status post lumbar laminectomy and fusion; likely
fibromyalgia (versus lupus); bipolar disorder; posttraumatic stress
disorder (PTSD), and anxiety.

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 sedentary work as defined
in 20 C.F.R § 404.1567(a), subject to the following limitations:
“[S]he can never climb ladders, ropes[,] or scaffolds; can
occasionally climb ramps or stairs, balance, stoop, crouch, kneel,
and crawl; must avoid concentrated exposure to extreme cold,
extreme heat, wetness or humidity, and excessive vibration; must
avoid all exposure to any hazards such as dangerous moving
machinery and unprotected heights; must be afforded the
opportunity for brief[,] one[-] to two[-] minute changes of position at
intervals not to exceed 30 minutes without being off task; is capable
of frequent fingering, handling, and reaching in all directions with
bilateral upper extremities; is capable of work in a low-stress job,
defined as having only occasional changes in the work setting and no
fast-paced production quotas such as fast-paced assembly line work
or high-volume piecemeal quotas; [and] is capable of no interaction
with the general public and occasional interaction with co-workers
5

and supervisors such that she is capable of working with things
rather than with people.”
She is unable to perform any of her past relevant work.
Step 5:

Prior to October 10, 2020, considering Plaintiff’s age, education,
work experience, and RFC, there were jobs that existed in significant
numbers in the national economy that she could have performed.
Since October 10, 2020, there have been no jobs that exist in
significant numbers in the national economy that Plaintiff can
perform.

(Decision, Doc. No. 7 at PageID 2321-32.) These findings led the ALJ to conclude that
for the purposes of Plaintiff’s application for Disability Insurance Benefits, Plaintiff was
not disabled at any time through the date last insured of December 31, 2019. (Id. at
PageID 2332.) As for Plaintiff’s Supplemental Security Income application, the ALJ
concluded that Plaintiff became disabled on October 10, 2020. (Id.)
B.

Treating Physicians
1.

Jonathan Belding, M.D.

Dr. Belding saw Plaintiff in follow-up for her second lumbar spine surgery on
November 28, 2018. (AR, Doc. No. 7-10 at PageID 1823.) According to Dr. Belding,
Plaintiff reported that she was doing well but that her back was “still pretty miserable.”
(Id.) Nevertheless, Dr. Belding noted: “I do not have any restrictions on her. I think she
will continue to do well.” (Id.) Dr. Belding instructed Plaintiff to continue to take
prescribed pain medications and to follow up again in four weeks. (Id.)
Dr. Belding subsequently completed an Orthopedic Specialist Medical Statement
in October 2020. (AR, Doc. No. 7-11 at PageID 2307-08.) Dr. Belding listed diagnoses of
6

a synovial cyst, cervical radiculopathy, and lumbar radiculopathy, as well as symptoms of
“neck pain with radiation.” (Id. at PageID 2307.) When asked to identify the clinical
findings and objective signs that supported the severity of Plaintiff’s symptoms and his
opinions, Dr. Belding wrote: “MRI cervical performed.” (Id.) Dr. Belding checked boxes
to indicate his opinion that Plaintiff could sit, stand, and walk for approximately two
hours each in an eight-hour workday. (Id.) He opined that Plaintiff would need to take
unscheduled breaks approximately every hour during a workday, and that Plaintiff would
need to rest for twenty to twenty-five minutes at a time. (Id.) Dr. Belding indicated that
muscle weakness, pain, paresthesia, and numbness caused Plaintiff’s need for breaks.
(Id.) Dr. Belding also opined that Plaintiff needed a cane or other hand-held assistive
device for occasional standing and walking, which he attributed to Plaintiff’s imbalance
and foot numbness. (Id.)
Additionally, Dr. Belding indicated that Plaintiff could rarely lift and carry ten
pounds and could occasionally lift or carry less than ten pounds. (Id. at PageID 2308.) He
indicated that she could never lift or carry more than ten pounds. (Id.) Dr. Belding opined
that Plaintiff could use her arms to reach in front of her body and could use her hands for
grasping, turning, and twisting objects for less than fifty percent of the time during an
eight-hour workday. (Id.) He opined that she could use her fingers for fine manipulation
and her arms for overhead reaching for less than twenty-five percent of the time. (Id.)
According to Dr. Belding, Plaintiff would be “off task” (defined as symptoms severe
enough to interfere with the attention and concentration needed to perform even simple
work tasks) for twenty-five percent or more of the workday, and she would likely be
7

absent from work for more than four days each month. (Id.) Dr. Belding also indicated
that Plaintiff’s impairments were “reasonably consistent” with the symptoms and
limitations that he described in the form. (Id.)
2.

Michael Harrington, M.D.

Dr. Harrington completed a Palliative Care Specialist Medical Statement form in
November 2020. (AR, Doc. No. 7-11 at PageID 2310-11.) Dr. Harrington listed
diagnoses of muscular dystrophy, autoimmune arthritis, and fibromyalgia. (Id. at PageID
2310.) He listed symptoms of joint pain, stiffness, low back pain, and radiculopathy due
to lumbar spine surgery. (Id.) Dr. Harrington indicated that Plaintiff could sit for at least
six hours in an eight-hour workday but could stand and walk for less than a total of two
hours. (Id.) He opined that Plaintiff would need to take unscheduled breaks, each lasting
for five to ten minutes, every thirty to sixty minutes. (Id.) Dr. Harrington attributed the
need for breaks to muscle weakness, pain, paresthesia, and numbness. (Id.) He indicated
no need for a cane or hand-held assistive device. (Id.) Dr. Harrington opined that Plaintiff
could rarely lift and carry up to twenty pounds and could occasionally lift and carry ten
pounds. (Id. at PageID 2311.) According to Dr. Harrington, Plaintiff’s impairments were
likely to produce “good days” and “bad days.” (Id.) Dr. Harrington further opined that
Plaintiff was likely to be “off task” for ten percent of a typical workday, and she would
likely be absent from work approximately two days per month. (Id.) Dr. Harrington
indicated that the symptoms and limitations that he assessed began on January 1, 2020.
(Id.)

8

3.

The ALJ’s evaluation of the treating physicians’ opinions.

The ALJ combined her analyses of Dr. Belding’s and Dr. Harrington’s opinions
and afforded them “partial weight.” (Decision, Doc. No. 7-12 at PageID 2329.) The ALJ
reasoned that the opinions were “somewhat contradictory given the medical evidence
discussed above.” (Id.) The ALJ further explained: “Nevertheless, the undersigned
appreciates Dr. Belding and Dr. Harrington’s treating relationships with [Plaintiff] and
finds their progress notes useful to the ultimate conclusion of disability.” (Id.)
D.

State Agency Psychological Consultants

Cynthia Waggoner, Psy.D. reviewed the record and completed a Disability
Determination Explanation form in January 2020. (AR, Doc. No. 7-3 at PageID 311-12,
317-19.) Dr. Waggoner found moderate impairment in the following “B Criteria” areas:
interacting with others; concentrating, persisting, or maintaining pace; and adapting or
managing oneself. (Id. at PageID 311.) She found no impairment in the area of
understanding, remembering, or applying information. (Id.) In the mental RFC section of
the form, Dr. Waggoner indicated that Plaintiff was moderately limited in the abilities of
carrying out detained instructions, maintaining attention and concentration for extended
periods, and working in coordination with or in proximity to others without being
distracted by them. (Id. at PageID 317-18.) Dr. Waggoner otherwise found no significant
limitations in the other areas of functioning that related to sustained concentration and
persistence. (Id.) She concluded: “[Plaintiff] displayed limitations in [concentration,
persistence, and pace] at exam. [Plaintiff is] [c]apable of completing simple [two- to

9

three-]step tasks that do not require a fast pace or high production quotas.” (Id. at PageID
318.)
Regarding social interactions, Dr. Waggoner opined that Plaintiff was moderately
limited in the abilities of interacting appropriately with the general public, accepting
instructions and responding appropriately to criticism from supervisors, and getting along
with coworkers or peers without distracting them or exhibiting behavioral extremes. (AR,
Doc. No. 7-3 at PageID 318.) Dr. Waggoner opined: “[Plaintiff] has limited social
contact and agoraphobia. [She is] [l]imited to superficial contact from the general public,
coworkers, and supervisors.” (Id.)
In the final area of adaptation, Dr. Waggoner opined that Plaintiff was moderately
limited in the ability to respond appropriately to changes in the work setting. (AR, Doc.
No. 7-3 at PageID 318). She referred to “[p]oor stress tolerance and panic attacks” and
concluded that Plaintiff was “[c]apable of working in a static/routine environment.” (Id.
at PageID 318-19.)
Kristin Haskins, Psy.D. reviewed the updated record at the reconsideration level in
May 2020. (AR, Doc. No. 7-3 at PageID 347, 350-51.) Dr. Haskins affirmed Dr.
Waggoner’s assessment regarding the “B criteria” areas of functioning. (Id. at PageID
347.) In the mental RFC section, Dr. Haskins opined that Plaintiff was moderately limited
in the abilities of maintaining attention and concentration for extended periods, working
in coordination with or in proximity to others without being distracted by them,
completing a normal workday and workweek without interruptions from psychologicallybased symptoms, and performing at a consistent pace without an unreasonable number
10

and length of rest periods. (Id. at PageID 350). Dr. Haskins found no significant
limitations in the other areas of functioning that related to sustained concentration and
persistence. (Id.) She concluded that Plaintiff was “[c]apable of completing short[-]cycle
tasks that do not require a fast pace or high production quotas.” (Id.)
As for social interactions, Dr. Haskins affirmed Dr. Waggoner’s assessment. (Id.
at PageID 351.) In the final area of adaptation, Dr. Haskins essentially affirmed Dr.
Waggoner’s assessment and opined that Plaintiff was capable of working in a static or
routine work environment, but she further restricted Plaintiff to no stringent time or
production demands. (Id.)
The ALJ combined her analyses of the state agency medical and psychological
consultants’ assessments. (Decision, Doc. No. 7-12 at PageID 2328.) She concluded that
the consultants’ assessments were “partially persuasive.” (Decision, Doc. No. 7-12 at
PageID 2328.) The ALJ reasoned that their findings were “only somewhat consistent
with the totality of the evidence.” (Id.) The ALJ acknowledged that the consultants had
“significant program knowledge.” (Id.) But the ALJ explained that she had “also fully
considered [Plaintiff’s] updated treatment records, the amount of time that has passed
since the State agency consultants provided their opinions, and [Plaintiff’s] allegations
and testimony” to conclude that Plaintiff “would have some additional, and more
restrictive, limitations from both a physical and mental standpoint that were not
contemplated by the State agency consultants . . . .” (Id.)
The ALJ then addressed the psychological consultants’ opinion that Plaintiff was
limited to “superficial contact from the general public, coworkers, and supervisors.”
11

(Decision, Doc. No. 7-12 at PageID 2328-29.) The ALJ noted that the consultants “do not
define what they mean by superficial contact.” (Id. at PageID 2329.) The ALJ also noted
that the RFC limitation for no interaction with the general public was more restrictive
than the consultants’ proposed limitation on public interaction. (Id.) As for interactions
with coworkers and supervisors, the ALJ explained that the RFC limitation (for
“occasional interaction with coworkers and supervisors such that she is capable of
working with things rather than people”) served to “limi[t] [Plaintiff] from jobs that focus
on personal interaction as opposed to dealing with physical objects.” (Id.) The ALJ
concluded: “While the State agency opinions and the [RFC] are not exactly the same,
they both limit [Plaintiff’s] contact and interaction with others while working and are at
least partially consistent with each other.” (Id.)
IV.

LAW AND ANALYSIS
Plaintiff asserts two errors: 1) the ALJ’s analysis of the opinions of Drs. Belding

and Harrington violated 20 C.F.R. § 404.1520c; and 2) the RFC does not accurately
account for the state agency psychological consultants’ limitation for superficial
interaction with others. (SE, Doc. No. 10 at PageID 2801, 2807.) For the reasons
discussed below, Plaintiff’s first asserted error is well taken and the ALJ’s decision
should be reversed.
A.

Applicable Law.

ALJs are required to 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]
12

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
(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).
The first two factors—supportability and consistency—are the “most important.”
20 C.F.R. § 404.1520c(b)(2) (emphasis added). The supportability factor recognizes that
“[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). Therefore, an
ALJ’s supportability analysis addresses whether a medical professional has sufficient
justification for their own conclusions. See Crystal E.J. v. Comm’r of Soc. Sec., No. 2:21CV-04861, 2022 WL 2680069 (S.D. Ohio July 12, 2022) (Preston Deavers, M.J.); accord
Burke v. O’Malley, No. 8:23-cv-415, 2024 U.S. Dist. LEXIS 48944, *8 (M.D. Fla. Mar.
13

20, 2024) (“Supportability addresses the extent to which a medical source or consultant
has articulated record evidence bolstering her own opinion or finding.”).
The consistency factor, by contrast, recognizes that “[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). The ALJ’s consistency analysis therefore must compare the medical
opinion at issue to evidence from “other medical and nonmedical sources.” Ford v.
Comm’r of Soc. Sec., No. 1:22-CV-00524, 2023 WL 2088157, at *17 (N.D. Ohio Jan. 31,
2023).
The distinction between the supportability and consistency factors is relatively
clear when the opinion is from a treating provider. Providers commonly rely on the
records in their possession—including progress notes, test results, statements from the
claimant, and opinions from other medical providers—to support their medical opinions.
An ALJ can readily identify a provider’s records that purportedly support their opinion
and use them to analyze supportability. Then, when analyzing consistency, the ALJ can
readily compare the provider’s opinion to opinions and evidence from other providers.
Because each factor (supportability and consistency) considers different evidence, the
reviewing court can easily determine whether the ALJ has addressed each factor.
It can be more challenging to distinguish between supportability and consistency
when the opinion is from a state agency consultant. Because they do not have their own
treatment records, consultants must review and rely upon documents in the administrative
record to support their opinions. The ALJ will, however, consider documents from the
14

same administrative record when analyzing both supportability and consistency. If the
consultant’s report clearly identifies the documents relied upon to support their opinions,
then the ALJ can conduct a supportability analysis that is based on those documents. But
if the consultant’s report does not clearly identify the documents that support their
opinions, then the ALJ’s ability to conduct separate supportability and consistency
analyses will be limited. See Kenneth B. v. Comm’r of Soc. Sec., No. 3:22-cv-672, 2024
U.S. Dist. LEXIS 49191 (W.D. Ky. Mar. 19, 2024) (citing Tyrone H. v. Comm’r of Soc.
Sec., No. 2:22-cv-3652, 2023 WL 2623571, *6 (S.D. Ohio Mar. 24, 2023)).
Because they are the most important factors, the ALJ is required not only to
consider the supportability and consistency of all medical opinions in the record, but also
to “explain how he or she considered them.” 5 Dayna S. v. Comm’r of Soc. Sec., 3:21-CV00326, 2023 WL 2009135, at *5 (S.D. Ohio Feb. 15, 2023) (Gentry, M.J.) (citing to 20
C.F.R. § 404.1520c(b)(2) (internal punctuation omitted and emphasis added)). No
“specific level of detail” is required, as “the appropriate level of articulation will
necessarily depend on the unique circumstances of each claim.” Timothy B. v. Comm’r of
Soc. Sec., No. 2:22-CV-03834, 2023 WL 3764304, at *7 (S.D. Ohio June 1, 2023)
(Bowman, M.J.) (internal citations omitted). Thus, ALJs need not use “magic words or
any specific phrasing” to comply with the applicable regulations. Id.
Nevertheless, an ALJ is required “to show his or her work.” Scott K. v. Comm’r of
Soc. Sec., No. 3:21-CV-00129, 2022 WL 4484603, at *4 (S.D. Ohio Sept. 27, 2022)

5
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).

15

(Silvain, M.J.) (internal citation omitted). Thus, “[t]his Court cannot uphold an ALJ’s
decision, even if there 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) (cleaned up) (internal quotations and citation omitted). See also Danyel P. v.
Comm’r of Soc. Sec., No. 2:21-CV-02405, 2022 WL 1514170, at *6 (S.D. Ohio May 13,
2022) (Preston Deavers, M.J.) (ALJ’s “inexplicable and illogical consistency” warranted
remand); Kimberly S. v. Comm’r of Soc. Sec., No. 3:21-CV-00310, 2022 WL 17820565,
at *3 (S.D. Ohio Dec. 20, 2022) (Silvain, M.J.) (ALJs must “provide a coherent
explanation of [their] reasoning . . . in order to provide sufficient rationale for a reviewing
adjudicator or court”); Hardiman v. Comm’r of Soc. Sec., No. 2:12-CV-00508, 2013 WL
3762266, at *5 (S.D. Ohio July 16, 2013) (Preston Deavers, M.J.) (remanding case on the
ground that “the ALJ’s decision is internally inconsistent and incomplete”).
Additionally, the ALJ is required to consider evidence from the entire relevant
time period when formulating the RFC. E.g., White v. Comm’r of Soc. Sec., No. 3:21-cv762, 2022 U.S. Dist. LEXIS 140674, *47 (N.D. Ohio June 1, 2022) (Knapp, M.J.),
affirmed by 2022 U.S. Dist. LEXIS 139178 (N.D. Ohio Aug. 4, 2022) (Knepp, D.J.). As
Magistrate Judge Knapp explained, “[w]hile the substantial evidence standard is
deferential, the Sixth Circuit has emphasized that the chief limitation to that deference ‘is
the requirement that all determinations be made based upon the record in its entirety.’”
2022 U.S. Dist. LEXIS 140674, *47 (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d

16

234, 249 (6th Cir. 2007)). Thus, an ALJ should not “unduly concentrate on one single
aspect of the claimant’s history.” Rogers, 486 F.3d at 249.
B.

The ALJ Reversibly Erred In Her Evaluation Of The Opinions Of
Plaintiff’s Treating Physicians.
1.

The ALJ failed to consider supportability pursuant to the
applicable regulations.

The ALJ was required to explain her analysis of the supportability and consistency
factors when considering the persuasiveness of the opinions of Drs. Belding and
Harrington. 20 C.F.R. § 404.1520c(b)(2). However, the ALJ appeared to conflate these
requirements and did not address the supportability factor. The Court therefore concludes
that the ALJ did not comply with Section 404.1520c(b)(2).
As discussed above, the ALJ assigned only “partial weight” to the opinions of Drs.
Belding and Harrington. (Decision, Doc. No. 7-12 at PageID 2329.) As an initial matter,
because Plaintiff filed her claim after March 27, 2017, the Social Security
Administration’s new regulations for evaluating medical opinion evidence apply. And so
the ALJ must not assign weight to any medical opinions but instead must evaluate the
persuasiveness of each medical opinion in the record. 20 C.F.R. § 1520c(a)-(b). Plaintiff
asserts that the ALJ erred because she “did not evaluate the opinions for their
persuasiveness and instead referred to the outdated and inapplicable standards outlined in
20 C.F.R. § 404.1527.” (SE, Doc. No. 10 at PageID 2801 n.1.)
This contention is not well-taken. The ALJ’s failure to specifically address the
persuasiveness of the treating physicians’ opinions appears to constitute a typographical
error, but it is a harmless error. Courts in the Sixth Circuit have held that a typographical
17

or scrivener’s error is harmless when the ALJ’s meaning is clear in context. Calkins v.
Sec’y of Health & Hum. Servs., No. 85-5685, 1986 WL 17083, *2 (6th Cir. May 7, 1986)
(holding that the district court properly “examined the opinion as a whole to interpret the
true meaning of the ALJ’s findings” and was not required to “ignore the real finding of
the ALJ and instead blindly follow the transcriber’s version of the finding.”); Barnes v.
Comm’r of Soc. Sec., No. 16-13714, 2018 WL 1474693 (E.D. Mich. Mar. 6, 2018)
(finding that scrivener’s errors were harmless because “the ALJ’s true meaning is easily
discernible for the analysis on each topic”); Gomez v. Berryhill, No. 3:18-cv-11738, 2019
WL 5680841, at *5 (E.D. Mich. June 11, 2019) (a typographical error did not require
remand because context showed the ALJ’s actual meaning).
In this case, the ALJ’s intended meaning is clear. The ALJ correctly cited the
applicable legal standard for evaluating the medical opinion evidence when determining
the RFC: “The undersigned has also considered the medical opinion(s) and prior
administrative medical finding(s) in accordance with the requirements of 20 CFR
404.1520c and 416.920c.” (Decision, Doc. No. 7-12 at PageID 2325.) In the medical
evidence summary section, the ALJ summarized the opinion of the consultative physician
and concluded that it was “partially persuasive.” (Id. at PageID 2327.) Then, in the
opinion evidence analysis section, the ALJ summarized the opinions and findings of the
state agency medical and psychological consultants and found that they were “partially
persuasive.” (Id. at PageID 2328.) The ALJ began her evaluation of the treating
physicians’ opinions in a subsequent paragraph by summarizing the opinions. (Id. at
PageID 2329.) The ALJ stated that she gave the opinions “partial weight,” and she
18

explained that the opinions were “somewhat contradictory” with the medical evidence.
(Id.) She also acknowledged the doctors’ treating relationships with Plaintiff. (Id.)
Because the ALJ found that the opinions were somewhat contradictory with the
other evidence of record and did not fully adopt the opinions, the undersigned finds that a
reasonable interpretation is that the ALJ found the doctors’ opinions were partially
persuasive pursuant to 20 C.F.R. § 404.1520c. The ALJ’s intended meaning is clear from
the ALJ’s analysis, and so ALJ’s error is harmless.
Nevertheless, the ALJ also erred by failing to address the required supportability
factor, and this is not a harmless error. At most, the ALJ’s discussion addresses the
consistency factor, which requires ALJs to consider “the evidence from other medical
sources and nonmedical sources.” 20 C.F.R. § 404.1520c(c)(2). The supportability factor,
by contrast, requires ALJs 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). The ALJ summarily concluded that the medical evidence
that she had “discussed above” in the decision was “somewhat contradictory” with the
opinions of Drs. Belding and Harrington. (Decision, Doc. No. 7-12 at PageID 2329.) She
stated this conclusion without explaining how she considered objective medical evidence
and supporting explanations cited and provided by these physicians.
Defendant argues that the ALJ did not err because the ALJ “properly applied” the
revised regulations for evaluating medical evidence. (Mem. In. Opp., Doc. No. 11 at
PageID 2815.) Defendant asserts that the ALJ need not specifically use the terms
“supportability” or “consistency” when addressing these factors. (Id. (citing Hardy v.
19

Comm’r of Soc. Sec., No. 2:20-cv-4097, 2021 WL 4059310, at *2 (S.D. Ohio Sept. 7,
2021) (Graham, D.J.); Kraig v. Kijakazi, No. 1:21CV1253, 2022 WL 4232692, at *8
(N.D. Ohio Sept. 14, 2022); Cormany v. Comm’r of Soc. Sec., No. 5:21-cv-933, 2022 WL
2611952, at *7 (N.D. Ohio May 20, 2022); Keel v. Saul, 986 F.3d 551, 556 (5th Cir.
2021)).) According to Defendant, the ALJ demonstrated that she considered the
supportability factor because she noted “that she reviewed their treatment notes in
forming the RFC” and because many of the treatment notes that the ALJ cited in her
medical evidence summary were from Drs. Belding and Harrington. (Mem. In. Opp.,
Doc. No. 11 at PageID 2819.) Additionally, the ALJ’s “reasoning can be traced in her
decision.” (Id. at PageID 2820.)
Defendant’s assertions are not well-taken. The Court agrees that ALJs do not err
merely by omitting the terms “supportability” and “consistency” from their decision, and
that reviewing courts must review the ALJ’s explanation of what she actually considered.
The Court has conducted that review and, for the reasons stated above, concludes that the
ALJ did not actually explain her consideration of the supportability factor, as the
regulations required her to do.
Defendant essentially argues that even if the ALJ erred in this respect, the error is
harmless because the ALJ’s conclusions are supported by substantial evidence. (Mem. In
Opp., Doc. No. 11 at PageID 2816-17.) The Court disagrees. Absent a sufficient
explanation of supportability and consistency with the record as a whole, the Court
cannot determine that the ALJ’s analysis of the treating physicians’ opinions is supported
by substantial evidence. See Jacob B. v. Comm’r of Soc. Sec., No. 1:20-cv-617, 2022 WL
20

130761, at *8 (S.D. Ohio Jan. 14, 2022) (Litkovitz, M.J.) (citing Ephraim v. Saul, No.
1:20cv00633, 2021 WL 327755, at *7 (N.D. Ohio Jan. 8, 2021), report and
recommendation adopted sub nom. Ephraim v. Comm’r of Soc. Sec., No. 1:20cv633,
2021 WL 325721 (N.D. Ohio Feb. 1, 2021) (“[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.’”)). See also Todd v. Comm’r of Soc. Sec., No. 3:20-cv-1374,
2021 WL 2535580, at *8 (N.D. Ohio June 3, 2021) (citing Blakley, 581 F.3d at 409) (The
ALJ’s error requires remand because “without fuller explanation, this [C]ourt cannot
engage in meaningful review of the ALJ’s decision.”). Accordingly, the ALJ’s failure to
properly analyze the treating physicians’ opinions pursuant to 20 C.F.R. § 404.1520c
constitutes reversible error because it prejudiced Plaintiff on the merits.
Finally, Defendant cites to two recent Sixth Circuit decisions to support its
argument that if substantial evidence supports the ALJ’s conclusion that a medical
opinion was unpersuasive, “any arguments as to evidence supporting other conclusions
the ALJ could have made ‘are a veiled attempt to have [the Court] reweigh the evidence,’
which the Court may not do.” (Mem. In. Opp., Doc. No. 11 at PageID 2817 (citing
Nasser v. Comm’r of Soc. Sec., No. 22-1293, 2022 WL 17348838, at *2 (6th Cir. Dec. 1,
2022); Pettit v. Comm’r of Soc. Sec., No. 22-3826, 2023 WL 3200582, at *2 (6th Cir.
May 2, 2023)).) Both cases are distinguishable.
The Nasser ALJ discounted a treating physician’s opinion on the basis that it was
inconsistent with the physician’s prior treatment records. 2022 WL 17348838, at *2. The
21

plaintiff argued that the ALJ applied 20 C.F.R. § 404.1520c incorrectly—not because the
ALJ failed to address supportability or consistency, but because several factors supported
the physician’s opinion, namely: “[H]e was the physician with the closest relationship to
[the plaintiff], his opinion was submitted under oath, and [the opinions of two other
doctors] were inconsistent with other parts of the record.” Id. The court rejected the
plaintiff’s arguments as “a veiled attempt to have us reweigh the evidence.” Id. The court
concluded that the ALJ “discussed all material aspects of Dr. Policherla’s opinion and
complied with § 1520c” and that substantial evidence supported his determination. Id.
Similarly, the ALJ in Pettit discounted a treating neurologist’s opinion because it
was unsupported by the neurologist’s own records and was inconsistent with other
evidence in the record. 2023 WL 3200582, at *2. The plaintiff argued that the ALJ
applied 20 C.F.R. § 404.1520c incorrectly but conceded that the ALJ “engaged in a
supportability and consistency discussion, as required by 20 C.F.R. § 404.1520c(a).” Id.
The court concluded: “To the extent that Pettit's argument merely reframes her earlier
argument that the ALJ's decision was superficial and lacked support in the record, we
have already rejected that assertion.” Id. (citing Nasser, 2022 WL 17348838, at *2).
Here, unlike in Nasser and Pettit, Plaintiff has not asked the Court to reweigh the
evidence. Instead, Plaintiff has argued that the ALJ failed to follow the regulatory
requirement to evaluate the treating physicians’ opinions for supportability and
consistency, and to explain her consideration of those factors. (See SSE, Doc. No. 10 at
PageID 2801-07.) For the reasons discussed above, this Court agrees that the ALJ failed

22

to follow the regulatory requirement to evaluate the treating physicians’ opinions for
supportability. The failure to comply with a legal requirement constitutes reversible error.
2.

The ALJ’s consistency analysis is not supported by substantial
evidence.

The ALJ explained that she was only partially persuaded by the opinions of Drs.
Belding and Harrington because they were “somewhat contradictory given the medical
evidence discussed above.” Thus, the ALJ arguably explained her consideration of the
consistency factor as required by 20 C.F.R. § 404.1520c(c)(2). However, the ALJ’s
consistency analysis is itself not supported by substantial evidence. Although the ALJ
supported her conclusion that the opinions of Drs. Belding and Harrington were
“somewhat contradictory” by citing “the medical evidence discussed above,” (Decision,
Doc. No. 7-12 at PageID 2329), the ALJ’s discussion of the medical evidence shows that
she relied only on more recent medical evidence when evaluating the opinions of
Plaintiff’s treating doctors.
The ALJ provided a summary of the medical evidence during the relevant time
period in connection with formulating the RFC. Significantly, the ALJ initially summed
up the evidence related to Plaintiff’s physical impairments: “While the evidence
demonstrates several severe physical impairments, the impairments improved greatly
with treatment.” (Decision, Doc. No. 7-12 at PageID 2326.) The ALJ then summarized
the objective evidence that was dated from the July 20, 2016 application date through
November 2018 in two paragraphs. (Decision, Doc. No. 7-12 at PageID 2326.) She began
the summary by stating that although Plaintiff had a history of musculoskeletal pain and
23

discomfort, the medical records showed “no evidence of any significant findings since
the alleged onset date.” (Id.) But this statement is unsupported by the findings dated
through November 2018 that the ALJ cited in the next two paragraphs, as well as other
evidence in the medical records, which were significant enough to warrant two lumbar
spine surgeries. For example, the ALJ cited lumbar and cervical spine imaging that was
taken in August 2016:
[I]maging from August 2016 showed mild degenerative changes that were
stable with asymmetric foraminal and right lateral recess stenosis at L5-S1
due to a diffuse disc bulge and hypertrophic facet arthropathy. At L4-L5
there was mild bilateral facet hypertrophy, and there was also an
impingement of the right S1 nerve root. An August 2016 cervical MRI
showed mild degenerative changes at C3-C4, C5-C6, and C6-C7 (Exhibit
B2A).
(Id.)
Next, the ALJ stated that Plaintiff underwent a microdiscectomy and laminectomy
at the L5-S1 level in October 2017. (Decision, Doc. No. 7-12 at PageID 2326 (citing AR,
Doc. No. 7-8 at PageID 1123).) Follow-up notes from Dr. Harrington indicated that
Plaintiff reported only temporary relief after the surgery, and she began reporting
significant back pain with radiation to the bilateral gluteal areas in February 2018. (AR,
Doc. No. 7-8 at PageID 1248.) An examination at that time showed diffuse lower back
pain and tenderness over the lower pelvic brim posteriorly. (Id. at PageID 1249.) An
examination in April 2018 showed “severely” limited range of motion, antalgia with hip
flexion and knee extension, guarding with hamstring extension, positive Faber signs,
sacroiliac joint pain, and decreased sensation. (Id. at PageID 1246.) Dr. Harrington

24

reported on several occasions that Plaintiff appeared “in distress” and “ke[pt] shifting off
[the] right buttock.” (Id. at PageID 1239, 1242, 1249; AR, Doc. No. 7-9 at PageID 1646.)
As the ALJ pointed out, a September 2018 lumbar MRI showed multiple cysts
adjacent to the right L5-S1 facet that resulted in lateral recess stenosis and compression
of the L5 and S1 nerve roots. (Decision, Doc. No. 7-12 at PageID 2326 (citing AR, Doc.
No. 7-8 at PageID 1619).) In November 2018, Plaintiff underwent another surgery that
included a revision laminectomy, L5-S1 foraminotomies, and lumbar fusion. (Decision,
Doc. No. 7-12 at PageID 2326 (citing AR, Doc. No. 7-8 at PageID 1211).) The ALJ then
cited Dr. Belding’s November 28, 2018 progress note and stated that Plaintiff reported
she was “doing pretty well,” and that “there were no restrictions placed on [Plaintiff’s]
activities.” (Decision, Doc. No. 7-12 at PageID 2326 (citing AR, Doc. No. 7-10 at
PageID 1823).)
Next, the ALJ summarized the objective evidence dated since January 2019,
which showed continued improvement in Plaintiff’s condition. (Decision, Doc. No. 7-12
at PageID 2326-27.) She described several examinations that showed full range of
motion, full strength in the upper and lower extremities, no tenderness, normal sensation,
and a normal gait. (Id.) The ALJ also cited lumbar spine x-rays that showed no postsurgical hardware failure or advanced spondylosis. (Id. at PageID 2326.)
Additionally, when the ALJ evaluated Plaintiff’s subjective complaints while
formulating the RFC, she relied on evidence of Plaintiff’s improved condition to find that
those complaints were inconsistent with the overall evidence. (Decision, Doc. No. 7-12 at
PageID 2327.) The ALJ explained: “While [Plaintiff] has been diagnosed with several
25

physical impairments, she has received proper treatment with signs of improvement.
Furthermore, based on physical exams showing normal muscle strength/tone, normal
gait/stance, and intact sensation (Exhibits B4F; B8F; B14F; B16F), . . . the undersigned
has accommodated for her physical limitations by further reducing her to sedentary
exertional work with additional non-exertional limitations.” (Id.) But most of the
evidence and the normal examination findings cited by the ALJ describes Plaintiff’s
condition after November 2018—well over two years after the alleged disability onset
date.
The ALJ likewise relied on recent medical evidence in her conclusion of the RFC
analysis. (Decision, Doc. No. 7-12 at PageID 2329.) The ALJ emphasized that Plaintiff’s
condition improved after surgical intervention: “Although [Plaintiff] has a history of
treatment, the objective medical evidence reflects mostly mild to moderate clinical
findings and conservative treatment of [Plaintiff’s] symptoms since her lumbar fusion in
2018.” (Id.) The ALJ reasoned that because Plaintiff’s condition had improved, she did
not need to include more restrictive limitations in the RFC. (Id.) But this explanation
shows that the ALJ based his analysis of the treaters’ opinions – and the RFC – upon
evidence from the end of the relevant time period. The ALJ did not explain how a
sedentary RFC would be reasonable earlier during the first two years after the alleged
disability onset date, when Plaintiff underwent and recovered from two spine surgeries.
And so the ALJ plainly did not base her conclusions “upon the record in its entirety.”
Rogers, 486 F.3d at 249.

26

In sum, the ALJ minimized the findings and Plaintiff’s treatment prior to
November 2018. She then limited her analysis to evidence from the end of the relevant
time period. The ALJ therefore plainly did not account for evidence from the entire
relevant time period. Accordingly, the ALJ’s conclusions about the consistency of the
opinions of Drs. Belding and Harrington are not supported by substantial evidence. This
is another reason why the ALJ’s decision should be reversed.
C.

The ALJ Did Not Reversibly Err In Evaluating The Findings Of The
State Agency Psychological Consultants.

Plaintiff does not allege that the ALJ failed to follow the requirements of 20
C.F.R. § 404.1520c when she evaluated the state agency psychological consultants’ prior
administrative medical findings. Instead, she claims that the ALJ erred by failing to
account for the consultants’ limitation to superficial interaction. (SE, Doc. No. 10 at
PageID 2807-10.) Plaintiff’s contention lacks merit because the ALJ thoroughly
discussed Plaintiff’s social functioning in the decision. The ALJ adequately explained
why she did not adopt the superficial interaction limitation in the RFC, and her
conclusions are supported by substantial evidence.
As discussed above, the consultants opined that Plaintiff was limited to
“superficial contact from the general public, coworkers, and supervisors.” (AR, Doc. No.
7-3 at PageID 318, 351.) The ALJ found the consultants’ assessments only “partially
persuasive” and reasoned that they were only “somewhat consistent with the totality of
the medical evidence.” (Id. at PageID 2328.) The ALJ then limited Plaintiff to “no
interaction with the general public and occasional interaction with co-workers and
27

supervisors such that she is capable of working with things rather than with people.”
(Decision, Doc. No. 7-12 at PageID 2325.)
Plaintiff correctly asserts that the terms “occasional” and “superficial” are not
interchangeable. This Court has routinely recognized that “occasional contact” refers to
the quantity of time spent with individuals, while “superficial contact” goes to the quality
of the interactions. See Garvin v. Comm'r of Soc. Sec., No. 2:20-CV-2566, 2021 WL
2200423, at *6 (S.D. Ohio June 1, 2021) (Deavers, M.J.), report and recommendation
adopted, No. 2:20-CV-2566, 2021 WL 2533191 (S.D. Ohio June 21, 2021) (Sargus, D.J.)
(citing, e.g., Hutton v. Comm’r of Soc. Sec., No. 2:20-CV-339, 2020 WL 3866855, at *5
(S.D. Ohio July 9, 2020) (Vascura, M.J.), report and recommendation adopted sub nom.
Hutton v. Comm’r of Soc. Sec., No. 2:20-CV-339, 2020 WL 4334920 (S.D. Ohio July 28,
2020) (Morrison, D.J.) (reversing and remanding where ALJ explanation was lacking
because “superficial interaction” is a well-recognized, work-related limitation); Corey v.
Comm’r of Soc. Sec., No. 2:18-cv-1219, 2019 WL 3226945, at *4 (S.D. Ohio July 17,
2019) (Vascura, M.J.) (“[R]eversal is warranted because the ALJ assigned significant
weight to Dr. Marlow's opinions, but failed to include limitations for ‘superficial'
interactions.’”); Lindsey v. Comm’r of Soc. Sec., No. 2:18-CV-18, 2018 WL 6257432, at
*4 (S.D. Ohio Nov. 30, 2018) (Vascura, M.J.) (“‘Occasional contact’ goes to the quantity
of time spent with [ ] individuals, whereas ‘superficial contact’ goes to the quality of the
interactions.” (emphasis added) (citation omitted))).
However, because the ALJ found that the consultants’ findings were only partially
persuasive, she was not required to adopt their recommended limitations. (See Decision,
28

Doc. No. 7-12 at PageID 2328.) Moreover, even when an ALJ gives great weight to an
opinion—which did not happen here—“there is no requirement that an ALJ adopt a state
agency psychologist’s opinion verbatim; nor is the ALJ required to adopt the state agency
psychologist’s limitations wholesale.” Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267,
275 (6th Cir. 2015). The ALJ must, however, “explain[n] the basis for the RFC
determination.” Anissa H. v. Comm’r of Soc. Sec., No. 2:21-cv-5315, 2023 U.S. Dist.
LEXIS 23150, at *24 (S.D. Ohio Feb. 9, 2023) (Litkovitz, M.J.), report and
recommendation adopted, No. 2:21-cv-5315, 2023 U.S. Dist. LEXIS 54657 (S.D. Ohio
Mar. 29, 2023) (Graham, D.J.) (citation omitted).
The undersigned concludes that the ALJ adequately explained the basis for her
RFC finding. The ALJ explained that she did not adopt the superficial limitation because
the consultants did not define the term. (Id. at PageID 2329.) Indeed, Social Security
regulations and rulings do not define superficial contact, and the consultants likewise did
not define what they meant by superficial contact in their assessments. (See AR, Doc. No.
7-3 at PageID 318, 351.) The ALJ further explained that the additional limitation that
Plaintiff was “capable of working with things rather than people” served to “further
limi[t] [Plaintiff] from jobs that focus on personal interaction as opposed to dealing with
physical objects.” (Id.) The ALJ concluded: “While the State agency opinions and the
residual functional capacity are not exactly the same, they both limit [Plaintiff’s] contact
and interaction with others while working and are at least partially consistent with each
other.” (Id.)

29

Additionally, the ALJ’s RFC limitations regarding social functioning are
supported by substantial evidence. For example, the ALJ found at Step Three that
Plaintiff has moderate limitation in the “B criteria” area of interacting with others.
(Decision, Doc. No. 7-12 at PageID 2324.) The ALJ acknowledged Plaintiff’s subjective
complaints of symptoms related to depression, PTSD, and anxiety. (Id. at PageID 2323.)
The ALJ cited to the opinion of the consultative psychologist who opined that Plaintiff
was “significantly impaired” in the ability to respond appropriately to supervisors and
coworkers. (Id. at PageID 2324.) The ALJ balanced this evidence with normal mental
status findings that included clear speech and no thought abnormalities, as well as
providers’ reports that Plaintiff established a good rapport, presented as cooperative and
with good hygiene and grooming, and had good interactions with medical staff. (Id.) The
ALJ also cited evidence that documented Plaintiff’s abilities in this area, such as
Plaintiff’s testimony that she regularly spent time with time with family and went
shopping approximately once per week, and records that showed “no problems getting
along with medical providers and staff and no problems with temper control.” (Id.)
The ALJ also provided a detailed summary of Plaintiff’s medical records related to
her mental impairments in the RFC analysis. (Decision, Doc. No. 7-12 at PageID 232728.) Here, the ALJ initially noted that Plaintiff’s treatment for her mental health
symptoms generally included “little more than a conservative regimen of psychotropic
medication and no evidence of any significant psychotherapy.” (Id. at PageID 2326.) The
ALJ then summarized the evidence and explained that examination records from
Plaintiff’s physicians and other treating sources had “essentially shown normal mental
30

functioning with no significant restrictions from a mental health standpoint since the
alleged onset date.” (Id. at PageID 2327.) The ALJ acknowledged several abnormal
objective examination findings including a depressed and anxious mood. (Id. at PageID
2327-28.) The ALJ compared these findings to other normal findings that included
pleasant and cooperative behavior, an appropriate affect, goal-directed thought processes,
and no difficulties with expressive or receptive language. (Id.) The ALJ also cited
Plaintiff’s reported daily activities, which included spending time with her friends and
family, preparing simple meals, and doing some housework. (Id.) The ALJ found that on
balance, the evidence did not support Plaintiff’s allegations of symptom severity. (Id. at
PageID 2325.)
Moreover, the ALJ’s limitation of Plaintiff to no interaction with the general
public (Decision, Doc. No. 7-12 at PageID 2325) is more restrictive than—and thus more
than adequately accounts for—the consultants’ assessment that Plaintiff is limited to
superficial interaction with the general public.
The fact that the ALJ rejected the superficial interaction limitation suggested by
the consultants—and adequately explained why she included a different limitation in the
RFC to account for Plaintiff’s social impairment—is not an error. “The responsibility for
determining a claimant's [RFC] rests with the ALJ, not a physician.” Poe v. Comm'r of
Soc. Sec., 342 F. App'x 149, 157 (6th Cir. 2009); citing 20 C.F.R. § 404.1546(c). An ALJ
is required to consider prior administrative findings when determining the RFC, but he is
not required to adopt them or adopt any such findings verbatim. See Poe, 342 F. App'x at
156-57 (6th Cir. 2009); Reeves v. Comm'r of Soc. Sec., 618 F. App'x 267, 275 (6th Cir.
31

2015). The ALJ’s explanation shows that she considered whether Plaintiff required a
limitation to superficial social interaction, and her conclusions are supported by
substantial evidence. See 20 C.F.R. § 404.1520c. The ALJ’s decision to include a
different limitation to account for Plaintiff’s moderate impairment in social functioning is
within the permissible “zone of choice” – and because the ALJ’s findings are supported
by substantial evidence they must be affirmed. Mullen, 800 F.2d at 545.
V.

CONCLUSION
In summary, although Plaintiff’s second assertion of error is without merit, the

ALJ reversibly erred in her analysis of the treating physicians’ opinions. Plaintiff’s first
assertion of error is therefore well-taken, and the undersigned Magistrate Judge
recommends that the ALJ’s decision be reversed and remanded.
VI.

REMAND
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
32

lacking. Faucher, 17 F.3d at 176. However, 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 medical opinion evidence, 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 under the required five-step sequential analysis to determine anew
whether Plaintiff was under a disability and whether her applications for Disability
Insurance Benefits and Supplemental Security Income should be granted for the entire
time period since the alleged onset date.

IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s Statement of Errors (Doc. No. 10) 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

33

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 Recommendations is
based in whole or in part upon matters occurring of record at an oral hearing, the
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).

34