Williams-Holland v. Commissioner of Social Security

Filing 26

ORDER Reversing and Remanding the Commissioner's Decision. Signed by Chief Magistrate Judge Tu M. Pham on October 6, 2021. (jcn)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
PAULA EVETTE WILLIAMS-HOLLAND,

)
)
Plaintiff,
)
)
v.
)
No. 20-2387-TMP
)
COMMISSIONER OF SOCIAL
)
SECURITY ADMINISTRATION,
)
)
Defendant.
)
________________________________________________________________
ORDER REVERSING AND REMANDING THE COMMISSIONER’S DECISION
________________________________________________________________
On May 30, 2020, Paula Evette

Williams-Holland 1 filed

a

Complaint seeking judicial review of a social security disability
benefits decision. (ECF No. 1.) Holland seeks to appeal from a
final

decision

of

the

Commissioner

of

Social

Security

(“Commissioner”) denying her disability insurance benefits under
Title II of the Social Security Act (“the Act”). 42 U.S.C. §§ 40134. For the reasons below, the decision of the Commissioner is
REVERSED and REMANDED. 2

1In

her hearing testimony, the claimant indicated that she prefers
to be referred to as “Holland.” (R. 37.)
2After

the parties consented to the jurisdiction of a United States
magistrate judge on April 7, 2021 this case was referred to the
undersigned to conduct all proceedings and order the entry of a
final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R.
Civ. P. 73. (ECF No. 18.)

I.
On

March

7,

2017,

BACKGROUND

Holland

applied

for

Social

Security

disability insurance benefits under Title II of the Act. (R. 22.)
That same day, she filed for supplemental security income as well.
(Id.) In all applications, she alleged a disability beginning on
March 2, 2012. (Id.) Holland’s initial applications were all denied
on June 2, 2017, and after reconsideration on September 1, 2017.
(Id.) Holland then requested a hearing on October 3, 2017, and
that hearing was held on January 3, 2019, in Memphis, Tennessee.
(Id.)
After the hearing, the ALJ preliminarily determined that
Holland met the insured status requirement of the Act. (R. 24.)
The ALJ then used the five-step analysis to conclude that Holland
was not disabled from May 17, 2017, through the date of the ALJ’s
decision. (R. 24-29.) For the first step, the ALJ determined that
Holland had not engaged in any substantial gainful activity since
March 2, 2012, the alleged onset date of her disability. (R. 24.)
For the second step, the ALJ found that Holland had the following
severe impairments: “carpal tunnel syndrome and obesity.” (R. 25.)
Holland also alleged disability stemming from high blood pressure,
a bone spur in her right heel, Bell’s palsy, right shoulder pain,
and arthritis. (R. 25-26.) Regarding her high blood pressure, the
ALJ concluded that it did not impose more than a minimal effect on
her work ability due to effective treatment with medication. (R.
-2-

25.) The ALJ found that the bone spur was not disabling, since
Holland could use an “air heel” to walk without pain and because
the issue had significantly improved since its initial flare up.
(Id.) Holland’s Bell’s palsy was found to not be disabling, since
a

consultative

examiner

found

it

did

not

impose

any

visual

limitations. (Id.) The ALJ dismissed the right shoulder pain as
well, since “pain is a symptom, not a medically determinable
impairment.” (R. 26.) Finally, the ALJ noted that the record
contained no evidence of arthritis. (Id.)
At

the

third

step,

the

ALJ

concluded

that

Holland’s

impairments do not meet or medically equal, either alone or in the
aggregate, the severity of one of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Id.)
Accordingly, the ALJ then had to determine whether Holland
retained the residual functional capacity (“RFC”) to perform past
relevant work or could adjust to other work. The ALJ found that:
[Holland] can perform medium work as defined in 20 C.F.R.
404.1567(c)
and
416.967(c)
except
she
can
only
frequently handle and finger bilaterally. [Holland] does
not have a severe impairment or combination of
impairments that would prevent her from performing the
standing, walking, lifting, and carrying necessary for
medium work. However, her bilateral carpal tunnel
syndrome and obesity reasonably preclude her from
performing the lifting and carrying necessary for heavy
work. Additionally her carpal tunnel syndrome symptoms
reasonably restrict her ability handle and finger [sic].
Accordingly, the undersigned limits the claimant to
medium work, except frequent handling and fingering
bilaterally.
-3-

(R. 28.) Pursuant to 20 C.F.R. § 404.1567(c), medium work “involves
lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.”
In

reaching

this

RFC

determination,

the

ALJ

discussed

Holland’s testimony and the medical evidence in the record. (R.
18-25.) The ALJ summarized Holland’s account of her symptoms and
condition as follows:
[Holland] alleges disability due to carpal tunnel
syndrome. She alleges that it causes her hands to become
weak and numb, which affects her ability to lift more
than ten pounds, reach, grip objects, and perform
repetitive movements with her hands. Furthermore, she
alleges that carpal tunnel syndrome interferes with her
activities of daily living. At hearing, she testified
that she has to take regular breaks, put her arms in
splints, and rest them on a pillow when doing housework,
dishwashing, and her hair. She also testified that she
has a hard time wringing out her towel to wash and
buttoning her clothes. She contends that some days are
worse than others are, and that she has about three good
days a week.
(R. 27.) The ALJ concluded that “the claimant’s bilateral carpal
tunnel

syndrome

could

reasonably

cause

her

alleged

symptoms.

However [] her statements concerning the intensity, persistence
and limiting effects of her symptoms are not entirely consistent
with the medical evidence of record.” (Id.) The ALJ, citing only
to a 2015 examination, noted that “[Holland’s] hands are not weak
or clumsy, her nerve function is normal, and her AIN, PIN, ulnar,
and radial motor function is good.” (Id.)
The ALJ then considered three pieces of medical opinion
evidence. First, the ALJ assigned “great weight” to Dr. Ammie
-4-

Maravelli’s opinion. (Id.) Dr. Maravelli served as the state agency
medical

consultant

at

the

reconsideration

level.

(Id.)

After

reviewing Holland’s case, Dr. Maravelli concluded that Holland
could perform medium work, and that her ability to push and pull
with her bilateral upper extremities is limited. The ALJ explained
that

this

opinion

was

entitled

to

great

weight

because

Dr.

Maravelli “supported his opinion and his opinion is consistent
with

the

medical

evidence

of

record.”

(Id.)

Second,

the

ALJ

assigned partial weight to the opinion of Dr. H. Blumenfeld, who
served as the state agency medical consultant at the initial level.
Dr. Blumenfeld found that Holland could only perform light work,
but agreed with Dr. Maravelli on certain limitations. (R. 28.) The
ALJ gave great weight to the portions of Dr. Blumenfeld’s opinion
that agreed with Dr. Maravelli’s, due to their consistency and
support in the record. (Id.) However, he gave little weight to
“the remainder of Dr. Blumenfeld’s opinion.” (Id.) Finally, the
ALJ considered the opinion of consultative examiner Dr. Lewis
Loskovitz. He gave the opinion little weight, stating that:
[Dr. Loskovitz] opined that the claimant can only
occasionally lift 10 pounds, cannot frequently lift 10
pounds, can stand for two to four hours, and can sit for
three to four hours. Dr. Loskovitz’s own exam findings
fail to support the extreme limitations he opines. For
example, Dr. Loskovitz found that the claimant was in no
acute distress, had full range of motion of all her
extremities, walked with a normal gait, had a normal
stance and musculature, had 5/5 strength, good grip
strength, good use of hands, and normal neurologic
findings. These findings are inconsistent with his
-5-

opinion. Furthermore, Dr. Loskovitz’s opinion is not
consistent with the medical evidence of record discussed
above and the state agency medical consultant’s
opinions.
(R. 28.) The ALJ then summarized his findings and decision as
follows:
[Holland} can perform medium work as defined in 20 C.F.R.
§ 404.1567(c) and 416.967(c) except she can only
frequently hand and finger bilaterally. The claimant
does not have a severe impairment or combination of
impairments that would prevent her from performing the
standing, walking, lifting, and carrying necessary for
medium work. However, her bilateral carpal tunnel
syndrome and obesity reasonably preclude her from
performing the lifting and carrying necessary for heavy
work. Additionally, her carpal tunnel syndrome symptoms
reasonably restrict her ability handle [sic] and finger.
Accordingly, the undersigned limits the claimant to
medium work, except frequent handling and fingering
bilaterally.
(R. 28.) With this RFC finding, the ALJ then moved to step four.
At step four, the ALJ found that Holland was capable of performing
her past relevant work as an appliance line assembler. (Id.) Nancy
Hughes, a vocational expert, went through four hypothetical RFC
classifications for the ALJ, testifying whether or not jobs for
each existed in the national economy. (R. 62-70.) Hughes testified
that she believed that a hypothetical person with Holland’s profile
who could “frequently” handle and finger would be able to perform
her past relevant work as an appliance line assembler, but not any
other of Holland’s past jobs. (R. 64.) A hypothetical person with
Holland’s profile who could only “occasionally” handle and finger
would not be able to perform any of Holland’s past relevant work.
-6-

(R.

64.)

Ultimately,

the

ALJ

concluded

that

Holland

could

“frequently” handle and finger. (R. 29.) Thus, Hughes had testified
that “a hypothetical person of the claimant’s vocational profile
and

residual

functional

capacity

could

return

to

their

past

relevant work,” and the ALJ gave this testimony “great weight.”
(Id.) Because of this, the ALJ determined that Holland was not
disabled from March 2, 2012, through the date of the decision and
did not proceed to step five.
On March 7, 2019, the ALJ issued a decision detailing the
findings summarized above. The Appeals Council denied Holland’s
request for review. (R. 1.) Holland now seeks judicial review of
the ALJ’s decision, which stands as the final decision of the
Commissioner under § 1631(c)(3) of the Act. On appeal, Holland
makes two arguments. First, she argues that the ALJ’s RFC finding
is not supported by substantial evidence because the ALJ did not
properly weigh Dr. Loskovitz’s opinion. (ECF No. 19 at 6.) Second,
she argues that the ALJ improperly dismissed her own account of
her symptoms and limitations. (Id. at 10.)
II.
A.

ANALYSIS

Standard of Review
Under 42 U.S.C. § 405(g), a claimant may obtain judicial

review of any final decision made by the Commissioner after a
hearing to which he or she was a party. “The court shall have power
to enter, upon the pleadings and transcript of the record, a
-7-

judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the
Commissioner's decision is limited to whether there is substantial
evidence to support the decision and whether the Commissioner used
the proper legal criteria in making the decision. Id.; Cardew v.
Comm'r of Soc. Sec., 896 F.3d 742, 745 (6th Cir. 2018); Cole v.
Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm'r of
Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial evidence
is more than a scintilla of evidence but less than a preponderance,
and is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Kirk v. Sec'y of Health &
Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson
v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842
(1971)).
In

determining

whether

substantial

evidence

exists,

the

reviewing court must examine the evidence in the record as a whole
and “must ‘take into account whatever in the record fairly detracts
from its weight.’” Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.
1990) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.
1984)).

If

substantial

Commissioner's

decision,

evidence

is

found

to

support

the

however,

the

court

must

affirm

that

decision and “may not even inquire whether the record could support
a decision the other way.” Barker v. Shalala, 40 F.3d 789, 794
-8-

(6th Cir. 1994) (quoting Smith v. Sec'y of Health & Human Servs.,
893 F.2d 106, 108 (6th Cir. 1989)). Similarly, the court may not
try the case de novo, resolve conflicts in the evidence, or decide
questions of credibility. Ulman v. Comm'r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (citing Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007)). Rather, the Commissioner, not the court, is
charged with the duty to weigh the evidence, to make credibility
determinations,

and

to

resolve

material

conflicts

in

the

testimony. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th
Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990).
B.

The Five-Step Analysis
The Act defines disability as the “inability to engage in any

substantial

gainful

activity

by

reason

of

any

medically

determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1). Additionally, section 423(d)(2) of the Act states that:
An individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in
the national economy, regardless of whether such work
exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether
he would be hired if he applied for work. For purposes
of the preceding sentence (with respect to any
individual), “work which exists in the national economy”
means work which exists in significant numbers either in
-9-

the region where such individual lives or in several
regions of the country.
Under

the

Act,

the

claimant

bears

the

ultimate

burden

of

establishing an entitlement to benefits. Oliver v. Comm'r of Soc.
Sec., 415 F. App'x 681, 682 (6th Cir. 2011). The initial burden is
on the claimant to prove she has a disability as defined by the
Act. Siebert v. Comm'r of Soc. Sec., 105 F. App'x 744, 746 (6th
Cir. 2004) (citing Walters, 127 F.3d at 529); see also Born v.
Sec'y of Health & Human Servs., 923 F.2d 1168, 1173 (6th Cir.
1990). If the claimant is able to do so, the burden then shifts to
the

Commissioner

employment

to

demonstrate

compatible

with

the

the

existence

claimant's

of

available

disability

and

background. Born, 923 F.2d at 1173; see also Griffith v. Comm'r of
Soc. Sec., 582 F. App'x 555, 559 (6th Cir. 2014).
Entitlement to social security benefits is determined by a
five-step sequential analysis set forth in the Social Security
Regulations.

See

20

C.F.R.

§§

404.1520,

416.920.

First,

the

claimant must not be engaged in substantial gainful activity. See
20 C.F.R. §§ 404.1520(b), 416.920(b). Second, a finding must be
made that the claimant suffers from a severe impairment. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(5)(ii). In the third step, the
ALJ determines whether the impairment meets or equals the severity
criteria set forth in the Listing of Impairments contained in the
Social

Security

Regulations.

See

20

C.F.R.

§§

404.1520(d),

404.1525, 404.1526. If the impairment satisfies the criteria for
-10-

a listed impairment, the claimant is considered to be disabled. On
the other hand, if the claimant's impairment does not meet or equal
a listed impairment, the ALJ must undertake the fourth step in the
analysis and determine whether the claimant has the RFC to return
to any past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1520(e). If the ALJ determines that the claimant can return to
past relevant work, then a finding of “not disabled” must be
entered. Id. But if the ALJ finds the claimant unable to perform
past relevant work, then at the fifth step the ALJ must determine
whether the claimant can perform other work existing in significant
numbers

in

the

404.1520(a)(4)(v),

national

economy.

404.1520(g)(1),

See

20

C.F.R.

416.960(c)(1)-(2).

§§

Further

review is not necessary if it is determined that an individual is
not disabled at any point in this sequential analysis. 20 C.F.R.
§ 404.1520(a)(4).
C.

Medical Opinion Evidence
As

a

application

preliminary
for

benefits

matter,
before

because
March

27,

Holland
2017,

filed
the

ALJ

her
was

required to adhere to 20 C.F.R. § 404.1527 in considering medical
opinions and prior administrative medical findings in the record. 3
In formulating an RFC assessment under these regulations, “the ALJ

3For

claims filed on or after March 27, 2017, new regulations that
abandon the old scheme of weighing medical opinion evidence apply.
See 20 C.F.R. § 404.1520c.
-11-

evaluates all relevant medical and other evidence and considers
what weight to assign to treating, consultative, and examining
physicians’ opinions.” Eslinger v. Comm’r of Soc. Sec., 476 F.
App’x 618, 621 (6th Cir. 2012) (citing 20 C.F.R. § 404.1545(a)(3));
see also Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir.
2010). “As a general matter, an opinion from a medical source who
has examined a claimant is given more weight than that from a
source who has not performed an examination.” Gayheart v. Comm’r
of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013). The Sixth Circuit
Court of Appeals has explained that:
An opinion from a treating physician is ‘accorded the
most deference by the SSA’ because of the ‘ongoing
treatment relationship’ between the patient and the
opining physician. A nontreating source, who physically
examines the patient ‘but does not have, or did not
have[,] an ongoing treatment relationship with’ the
patient, falls next along the continuum. A nonexamining
source, who provides an opinion based solely on review
of the patient’s existing medical records, is afforded
the least deference.
Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 439 (6th Cir.
2012) (quoting Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 875
(6th Cir. 2007)) (internal citations omitted). A treating source’s
opinion is due controlling weight if it is “well-supported by
medically acceptable clinic and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in
[the claimant’s] case record.” 20 C.F.R. § 416.927(c)(2); Turk v.
Comm'r of Soc. Sec., 647 F. App'x 638, 640 (6th Cir. 2016). For
nontreating

and

nonexamining

sources,
-12-

the

Commissioner

should

“weig[h] these opinions based on the examining relationship (or
lack thereof), specialization, consistency, and supportability,
but only if a treating source is not deemed controlling.” Id. at
376. Despite these requirements, “a claimant is entitled under the
SSA only to reasons explaining the weight assigned to his treating
sources.” Norris, 461 F. App’x at 439. Even where the ALJ “could
have provided greater detail,” the decision will still survive
review “so long as the ALJ’s decision adequately explains and
justifies its determination as a whole.” Id.
Holland argues that the ALJ did not properly weigh the opinion
of Dr. Lewis Loskovitz, an examining but nontreating opinion
source, when compared with the opinions of Drs. Maravelli and
Blumenfeld, who did not examine her. (ECF No. 19 at 9.) While “as
a general matter” a nontreating source’s opinion is given greater
weight than a nonexamining one, “it is not a per se error of law
. . . for the ALJ to credit a nonexamning source over a nontreating
source.” Norris, 461 F. App’x at 439. Here, the ALJ’s decision to
credit the opinions of Dr. Maravelli and Dr. Blumenfeld over Dr.
Loskovitz was supported by substantial evidence. The ALJ noted
that Dr. Loskovitz’s opinion was inconsistent with the medical
record as a whole and with his own examination. (R. 28.) Dr.
Maravelli

and

Dr.

Blumenfeld,

while

differing

on

the

exact

limitations that Holland should work under, both disagreed with
Dr. Loskovitz’s opinion, believing that it overstated Holland’s
-13-

limitations,

lacked

substantial

support

from

the

examination

itself, and was internally inconsistent. (R. 96-97; 83.) The ALJ
noted that despite the “extreme limitations” he ordered, Dr.
Loskovitz “found that the claimant was in no acute distress, had
full range of motion of all her extremities, walked with a normal
gait, had a normal stance and musculature, had 5/5 strength, good
grip

strength,

good

use

of

hands,

and

normal

neurological

findings.” (R. 28.) His ultimate restrictions were much more severe
than either those recommended by Dr. Maravelli or Dr. Blumenfeld.
(R. 27-28.) While the “ALJ could have provided greater detail,
particularly

as

to

why

the

nonexamining

opinions

were

more

consistent with the overall record, the ALJ was under no special
obligation to do so insofar as he was weighing the respective
opinions of [examining] versus nonexamining sources.” 4 Norris, 461
F. App’x at 440; see also Smith, 482 F.3d at 876 (“this reasonsgiving requirement exists only for § 404.1527(d)(2), and not for
4Claimant

briefly argues that the ALJ selectively weighed
inconsistency against the opinions. (ECF No. 19 at 9.) The ALJ
considered the inconsistency of Dr. Loskovitz’s opinion with the
other opinions as undercutting the reliability of Dr. Loskovitz,
but did not seem to consider the inconsistencies between the other
opinions as counting against them. (Id.) This argument fails for
two reasons. First, the ALJ explained that Dr. Loskovitz’s opinion
was inconsistent with the record as a whole, as well as with the
other opinions. (R. 27-28.) The parts of the other opinions that
he credited were those consistent with the record as a whole. (Id.)
Second, there is no special obligation imposed on the ALJ beyond
“adequately explain[ing] and justf[ying] its determination as a
whole” when considering a nontreating source opinion. Norris, 461
F. App’x at 440.
-14-

the remainder of § 404.1527(d).”) Instead, the ALJ must merely
consider the nature of the treatment relationship, the evidence
supporting the opinion, the specialization of the source, and the
consistency of the opinion with the record as a whole to guide
their ultimate determination of weight. 20 C.F.R. § 404.1527(c).
The

ALJ

did

just

that

by

noting

the

inconsistencies

of

Dr.

Loskovitz’s opinion, his limited relationship with Holland, and
the conflicts between his opinion and the record as a whole. (R.
28.) This is evidence that “a reasonable mind might accept as
adequate to support a conclusion.” Kirk, 667 at 535. Further, The
Sixth Circuit has upheld similar decisions where an examining
source was given little weight due to inconsistencies with their
own examination and the overall record. See Norris, 461 F. App’x
at

439;

Ealy,

594

F.3d

at

514-15.

Because

the

ALJ

properly

evaluated Dr. Loskovitz’s opinion considering the record as a
whole, the ALJ’s decision to afford Dr. Loskovitz’s opinion little
weight is supported by substantial evidence.
D.

Claimant’s Subjective Account of Her Symptoms
Holland also argues that the ALJ failed to properly evaluate

her own account of her symptoms and pain. (ECF No. 17 at 10.) She
suggests that the pain from her carpal tunnel syndrome, and the
frequent breaks in activity that it causes, is a significant cause
of her disability.

-15-

While

“subjective

allegations

of

disabling

symptoms,

including pain, cannot alone support a finding of disability,”
pain or symptoms stemming from an underlying condition can help
establish that a claimant is disabled. Duncan v. Sec’y of Health
& Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). In order to
properly evaluate subjective accounts, the courts use a twopronged analysis. First, the ALJ should examine “whether there is
objective

medical

evidence

of

an

underlying

condition.”

Id.

Second, after establishing an underlying medical condition, the
court must either find, “1) objective medical evidence to confirm
the severity of the alleged pain arising from that condition or 2)
the objectively determined medical condition must be of a severity
which can reasonably be expected to give rise to the alleged pain.”
Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 988 (N.D. Ohio
2003) (quoting Duncan, 801 F.2d at 853.); see also Wilson v. Comm’r
of Soc. Sec., 783 F. App’x 489, 502 (6th Cir. 2019). Where
objective medical evidence is lacking, a claimant may nevertheless
“experience

pain

severe

enough

to

impose

limitations

on

the

capacity for work.” Cross v. Comm’r of Soc. Sec., 473 F. Supp. 2d
724, 732 (N.D. Ohio 2005); 20 C.F.R. § 416. 929(c)(2) (“we will
not reject your statements about the . . . effect your symptoms
have on your ability to work . . . solely because the available
objective

medical

evidence

does

not

substantiate

your

statements.”); see also Gentry v. Comm’r of Soc. Sec., 741 F.3d
-16-

708, 726 (6th Cir. 2014). Determining whether symptoms are indeed
severe enough to constitute disability in the absence of objective
medical evidence requires the ALJ to evaluate the intensity and
persistence of an individual’s symptoms. Cross, 473 F. Supp. at
732; 5 Soc. Sec. Ruling (SSR) 16-3p, Evaluation of Symptoms in
Disability Claims, 2017 WL 5180304 (Oct. 25, 2017). Agency guidance
provides
intensity

factors
and

medications,

that

an

ALJ

persistence.

treatments,

and

A

must

consider

claimant’s

aggravating

when

daily

factors

evaluating
activities,

must

all

be

considered before issuing a finding on the subjective intensity
and persistence of a claimant’s symptoms. SSR 16-3p, 2017 WL
5Many

cases cited in this section refer to subjective symptom
evaluation using language of “credibility.” This discrepancy is
due to a change in internal agency guidance regarding the use of
the term “credibility,” which the agency believed was leading ALJs
to improperly assess a claimant’s character. Accordingly, the
agency
replaced
its
old
guidance,
which
used
the
term
“credibility,” with new guidance that sought to “clarify” what
should be considered and what was required of ALJs when assessing
subjective complaints of pain or other symptoms. Compare Soc. Sec.
Rul. (SSR) 96-7p, 1996 WL 374186 (Jul. 2, 1996) with Soc. Sec.
Rul. (SSR) 16-3p, 2017 WL 5180304 (Oct. 25, 2017). However, Sixth
Circuit district courts have noted that “[the new ruling’s] purpose
is to ‘clarify’ the rules concerning subjective symptom evaluation
and not to substantively change them.” Brothers v. Berryhill, No.
5:16-cv-01942, 2017 WL 2912535, at *10 (N.D. Ohio Jun. 22, 2017);
see also Dooley v. Comm’r of Soc. Sec., 656 F. App’x 113, 119 n.1
(6th Cir. 2016) (finding that 16-3p “does not alter the rule that
the ALJ should consider ‘possible reasons’ why a claimant failed
to seek medical treatment ‘consistent with the degree of his or
her complaints.’”); Gilliam v. Comm’r of Soc. Sec., No. 2:18-cv12793, 2019 WL 6112696, at *10 (E.D. Mich. Jul. 10, 2019) (“Many
courts have recognized that SSR 16-3p changes little of substance
and instead tinkers with semantics” and recognizing that “prior
caselaw consequently remains valid”) (collecting cases).
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5180304 at *6. An ALJ must “clearly state [their] reasons” for
these findings, Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir.
1994) (citing Auer v. Sec’y of Health & Human Servs., 830 F.2d
594, 595 (6th Cir. 1987), and these findings must be supported by
substantial evidence, Walters, 127 F.3d at 531. Merely “cherrypick[ing] select portions of the medical record to discredit the
claimant’s complaints of pain” is not enough; the factors described
above must be considered. Jennings v. Soc. Sec. Admin., No. 3:19cv-00065, 2020 WL 1808507, at *10 (M.D. Tenn. Feb. 25, 2020)
(quoting Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 435 (6th
Cir. 2013)).
The ALJ here found that Holland’s “bilateral carpal tunnel
syndrome could reasonably cause her alleged symptoms,” satisfying
the first prong of the Duncan test. (R. 27.) However, he concluded
that “her statements concerning the intensity, persistence, and
limiting effects of her symptoms are not entirely consistent with
the medical evidence of record.” (Id.) To support this finding,
the ALJ cited to one September 2015 examination in which “physical
examination revealed that [Holland’s] hands are not weak or clumsy,
her nerve function is normal, and her AIN, PIN, ulnar, and radial
motor function is good.” (R. 27.) This sentence shows the ALJ
considering the objective medical evidence of Holland’s subjective
symptoms and pain, as is proper and required under Duncan. But
where

the

individual’s

statements
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about

the

intensity,

persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, the
ALJ must “consider other information and factors which may be
relevant to the degree of pain alleged.” Patton v. Comm’r of Soc.
Sec., No. 4:20-CV-00141-HBB, 2021 WL 4507463, at *7 (W.D. Ky. Oct.
1, 2021).
The ALJ did not explicitly consider other information. The
ALJ included no “unified statement of reasons for discounting
[subjective symptoms]” beyond stating that Holland’s allegations
were inconsistent with the record. Cross, 473 F. Supp. at 733. To
support this, the ALJ merely cited one examination from two years
prior and

gave

testimony,

the

no

indication

internal

of

his

consistency

impression
of

her

of

Holland’s

statements,

her

compliance with treatment plans, her willingness to seek treatment
in

general,

or

other

factors

beyond

briefly

summarizing

her

testimony in his opinion. (R. 27.) No “specific reasons for the
weight given to the individual’s symptoms” were provided, other
than citing to one piece of objective medical evidence. SSR 163p, 2017 WL 5180304 at *10. The regulation requires more. Id. At
*7

(noting

that

the

agency

will

consider

daily

activities,

medications, treatments, and measures the individual uses to treat
the

pain

in

evaluating

intensity,

persistence,

and

limiting

effects); see also Rogers, 486 F.3d at 248-49 (ALJ’s credibility
determination inadequate where the ALJ improperly focused purely
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on objective medical evidence). Given that the agency has provided
“a clear directive to pay as much attention to giving reasons for
discounting claimant [subjective symptoms] as must be given to
reasons for not fully accepting the opinions of treating sources,”
Cross, 373 F. Supp. at 733, citing to one examination in the record
and “simply recit[ing] the factors that are described in the
regulations for evaluating symptoms” is not enough to assure the
court that the entire record was considered in evaluating Holland’s
symptoms.

Compare

evaluating
effects

SSR

factors

of

the

of

16-3p,

2017

“intensity,

individual’s

WL

5180304

at

persistence,

symptoms”)

with

*1

(listing

and

limiting

(R.

27)

(“her

statements concerning the intensity, persistence, and limiting
effects of her symptoms are not entirely consistent with the
medical evidence of record.”); see also Felisky, 35 F.3d at 103940 (noting that where “[the ALJ’s] opinion explicitly finds only
the content of the medical record insufficient” that this is “not
the end of the analysis”) (citing 20 C.F.R. § 404.1529(c)(2));
Auer, 830 F.2d at 595 (upholding a decision where “the [ALJ] cited
very specific examples of Auer’s lack of credibility on certain
issues” including medical treatment, performance of semi-skilled
labor, and living in an unhealthy environment).
This

insufficient

articulation

constitutes

a

“compelling

reason” to remand this case for further consideration, especially
because the ALJ’s opinion is unclear about how or whether any other
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evidence was considered at all. Smith v. Halter, 307 F.3d 377, 379
(6th Cir. 2001); see also Jennings, 2020 WL 1808507, at *11 (“the
question is not whether substantial evidence supports the alleged
limiting effect . . . it is whether the ALJ pointed to substantial,
legitimate evidence to support his findings with respect to those
symptoms”). Indeed, the Commissioner’s brief works against their
argument in this case. The Commissioner offers numerous arguments
in support of the ALJ’s opinion, including noting Holland’s lack
of desire to receive treatment for carpal tunnel, (ECF No. 24 at
6), arguing that her household activities cut against the validity
of her subjective symptoms, (id.), and pointing to other treatment
notes, (id. at 5). Discussion of all these points would have been
proper (and consideration of some of them is required) if done by
the ALJ. However, these points do not appear in the ALJ’s opinion.
“Principles

of

administrative

law

preclude

the

court

from

inferring a reason for the ALJ’s credibility determination or
finding that the ALJ’s discussion of the evidence implicitly
supplies reasons for rejecting the claimant’s testimony.” Blom v.
Barnhart, 363 F. Supp. 2d 1041, 1055 (E.D. Wis. 2005).
To be clear, the court is not deciding whether Holland’s
statements or accounts of her symptoms are correct or not. Garner,
745 F.2d at 387 (“the court may not . . . decide questions of
[subjective symptom evaluation].”) That decision is for the ALJ.
But here, his insufficient articulation of that decision “denotes
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a lack of substantial evidence, even where the conclusion of the
ALJ may be justified based upon the record.” 6 Wilson, 783 F. App’x
at 504 (quoting Cole, 661 F.3d at 937). Because the ALJ failed to
follow agency rules and procedures, it is ordered that Holland’s
application for disability benefits be remanded for the ALJ to
properly evaluate Holland’s subjective account of her symptoms.
III. CONCLUSION
For

the

reasons

above,

the

Commissioner’s

decision

is

REVERSED and REMANDED for further proceedings consistent with this
opinion.
IT IS SO ORDERED.

6To

the extent harmless error review applies here, the court finds
that the error was not harmless. Compare Johnson v. Comm’r of Soc.
Sec., 535 F. App’x 498, 507 (6th Cir. 2013) (“harmless error
applies to [credibility] determination[s], and the ALJ’s decision
will be upheld as long as substantial evidence remains to support
it.”) (citing Ulman, 693 F.3d at 714) with Haeuptle v. Saul, 3:30cv-00284, 2021 WL 2935350 (M.D. Tenn. Jul. 13, 2021) (“Ulman says
that if the ALJ cited substantial, legitimate evidence to support
her conclusions, the Court is not to second-guess the ALJ’s
determination”) (emphasis added); Jackson v. Comm’r of Soc. Sec.,
No. 2:14-cv-801, 2015 WL 5634671, at *9 (S.D. Ohio Sept. 25, 2015)
(“to recognize substantial evidence as a defense to non-compliance
with Agency regulations ‘would afford the Commissioner the ability
to violate the regulation with impunity and render the protections
promised therein illusory.’”) (quoting Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 546 (6th Cir. 2004)). Here, the ALJ did not
discuss or support his opinion of the effects of Holland’s symptoms
with substantial evidence from the record. Such error undermines
the purpose of regulatory articulation requirements, which is to
provide the “clarity in later proceedings” that is “absolutely
essential for meaningful appellate review.” Rogers, 486 F.3d at
248, n.5 (citing Hurst v. Sec’y of Health & Human Servs., 753 F.2d
517, 519 (6th Cir. 1985)).
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s/ Tu M. Pham
____
TU M. PHAM
Chief United States Magistrate Judge
October 6, 2021_______
Date

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