Opinion
3:23-CV-00009-JJH
11-20-2023
JACQUELINE GEER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant,
JEFFREY J. HELMICK, U.S. DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Jennifer Dowdell Armstrong, U.S. Magistrate Judge.
I. INTRODUCTION
Plaintiff Jacqueline Geer (“Ms. Geer”) seeks judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying her applications for Disability Insurance Benefits (“DIB”). U.S. District Judge Jeffrey J. Helmick has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). Pursuant to Local Civil Rule 72.2, this matter was referred to me for preparation of a Report and Recommendation. For the reasons set forth below, I RECOMMEND that the Court VACATE and REMAND the Commissioner's final decision.
II. PROCEDURAL HISTORY
Ms. Geer filed an application for DIB on June 17, 2020, alleging a disability onset date of May 12, 2020. (Tr. 199.) Her application was denied initially and upon reconsideration. (Tr. 110, 116, 121.) Ms. Geer requested a hearing before an administrative law judge (“ALJ”). (Tr. 125-26.) On October 28, 2021, an ALJ held a telephone hearing due to the COVID-19 pandemic, during which Ms. Geer, represented by counsel, and a vocational expert (“VE”) testified. (Tr. 56-80.) The ALJ issued a written decision on January 6, 2022, finding Ms. Geer not disabled under the Social Security Act. (Tr. 27-44.) The ALJ's decision became final on November 2, 2022, when the Appeals Council declined further review. (Tr. 14.) Ms. Geer filed a Complaint challenging the Commissioner's final decision. (ECF Doc. 1.) She asserts the following assignment of error:
The administrative transcript (“Tr.”) appears at ECF Doc. 5 on CM/ECF.
(1) The ALJ's decision is not supported by substantial evidence, as her evaluation of the opinion evidence from several sources is incomplete, fails to meet the minimum articulation requirements set out in 20 C.F.R. § 404.1520c, and is based on significant mischaracterizations of the underlying evidence.(ECF Doc. 6, PageID#836.)
III. BACKGROUND INFORMATION
A. Personal, Educational, and Vocational Experience
Ms. Geer was born in 1957, and she was 63 years old on the alleged disability onset date. (Tr. 43.) She lives with her fiance in a condominium. (Tr. 59.) She has three children. (See Tr. 60.) She earned a GED in 1981 and an “office careers” certificate in 1982. (Id.) She has a valid driver's license. (Tr. 61.) The ALJ found Ms. Geer had past relevant work as a receptionist, switchboard operator, and administrative assistant. (Tr. 42.)
B. Relevant Hearing Testimony
1. Ms. Geer's Testimony
Ms. Geer testified that when she awakens, she is nauseous, cold, sweaty, clammy, and unable to eat in the morning. (Tr. 65.) She testified that she has experienced a couple of panic attacks. (Id.) She further testified that her anxiety causes digestive issues, including uncontrollable diarrhea and constipation. (Tr. 66.) She treats with an adult psychiatrist, a primary care provider, and a chiropractor. (Id.) She testified that she can walk for 30 minutes and needs to adjust herself after sitting 30 to 60 minutes. (Id.) She has not treated with a neurosurgeon or anyone other than a chiropractor for her back. (Id.) When asked why she had not seen a specialist for her back complaints, Ms. Geer stated that the chiropractor is “[]able to keep [her] adjusted” so that she does not have “much pain.” (Id.) She further explained that her lower back bothers her when she is gardening or leaning over for any extended time, and she is able to limit her back pain if she does not engage in these positions and exercises for her back. (Id.)
Ms. Geer described her typical day. She testified that she generally does not get dressed unless she must go somewhere that day and does not shower daily because she does not feel strong enough to get into the shower. (Tr. 67.) She stated that she occasionally requires assistance getting in and out of the shower. (Id.) Ms. Geer stated that she does laundry once every two weeks. (Tr. 67-68.) Her fiance does most of the cooking, but she reheats leftovers. (Tr. 68.) She stated that she will try to watch TV and play games on her phone. (Id.) She testified that she has “lost [her] ability to concentrate and to think things through or make decisions.” (Id.) She speaks with one friend on the phone weekly. (Id.) Ms. Geer has a Facebook account that she uses to keep track of her friends. (Id.) She does the dishes every other day. (Id.) She typically does not grocery shop, but she will do so if she is out at a doctor's appointment and needs an item. (Id.)
Ms. Geer sees a psychiatrist for medication management, but she does not see a therapist. (Tr. 70.) She last saw a therapist in 2015 for less than one year. (Tr. 71.) Ms. Geer testified that she stopped seeing the therapist because she was feeling better. (Id.) She also testified that she recently spoke with her psychiatrist about returning to therapy. (Tr. 70.)
Upon further questioning by her counsel, Ms. Geer testified that she sometimes has pain in her lower back while doing dishes or carrying laundry. (Tr. 72.) She stated that she alleviates the pain by doing stretching exercises provided by her doctor. (Tr. 73.) She will take Aleve (an over-the-counter pain medication) once and a while, but she generally just lies on her back and does stretching exercises. (Tr. 73.) She explained that her job was terminated because she ran out of medical leave that she used for her conditions. (See Tr. 73-74.)
2. Vocational Expert's Testimony
The VE testified that Ms. Geer had past relevant work as a receptionist, switchboard operator, and administrative assistant. (Tr. 76.) The ALJ first asked whether an individual with Ms. Geer's age, education, and vocational experience could perform work at all exertional levels, except she can understand, remember, and carry out concrete or fairly abstract instructions of at least simple to moderate complexity and can work in a static work setting with few if any changes that are easily explained. (Id.) The VE opined that this individual could not perform Ms. Geer's past relevant work but could perform work as a cleaner and detailer. (Tr. 77.)
The ALJ then asked whether it would be work-preclusive if an individual is off-task 25% or more of the workday. (Tr. 78.) The VE opined that this would be work-preclusive because being off-task 10% of the workday is the maximum an employer would tolerate. (Id.) The ALJ also asked whether an individual missing two or more days monthly would be work-preclusive. (Id.) The VE opined that this would also be work-preclusive because one day a month is the maximum tolerance for absences. (Id.) The ALJ asked whether an individual needing to lie down and sleep during the workday outside of normal breaks would be able to perform. (Id.) The VE opined that this limitation would be work-preclusive. (Id.) The ALJ also asked whether an individual could perform work if they required two additional, brief bathroom breaks of no more than five minutes at a time. (Id.) The VE stated that additional bathroom breaks would require a special accommodation in the workplace. (Id.) The VE further testified that the standard breaks for competitive employment are 15 minutes in the morning, 15 minutes in the afternoon, and 30 minutes for lunch. (Tr. 78-79.)
C. Relevant Non-Medical/Medical Opinion Evidence
1. Susan Haley, M.D.
Dr. Haley diagnosed Ms. Geer with recurrent moderate major depression and generalized anxiety disorder. (Tr. 656.) Dr. Haley opined that there was a guarded prognosis for these diagnoses. (Id.) As support for Dr. Haley's assessed diagnoses and limitations for Ms. Geer, Dr. Haley stated that Ms. Geer has experienced recurrent major depressive episodes with depressed mood, insomnia, reduced initiative, reduced attention and/or concentration, reduced appetite, and GI disorder. (Id.) Dr. Haley also stated that Ms. Geer had concomitant generalized anxiety with autonomic disturbance. (Id.) Dr. Haley stated that these disorders have not been in complete remission at any time. (Id.) Dr. Haley opined that Ms. Geer's symptoms and limitations can be expected to last for at least 12 months. (Id.)
Dr. Haley opined that Ms. Geer is markedly limited in her ability to understand, remember, or apply information; moderately limited in her ability to interact with others; extremely limited in her ability to concentrate, persist, or maintain pace; and moderately limited in her ability to adapt or manage oneself. (Tr. 658.) Dr. Haley also opined that Ms. Geer was extremely limited in short-term memory and mildly limited in long-term memory. (Tr. 659.) Dr. Haley further opined that Ms. Geer could maintain attention and concentration for 15 minutes; could not maintain regular attendance; required enhance supervision; and could sometimes, but not consistently, work appropriately with the general public, coworkers, and supervisors. (Id.) Dr. Haley also indicated that Ms. Geer would require praise and positive reinforcement from supervisors to handle stress and emotions, but he also stated that this would be insufficient to substantially reduce her anxiety and ensure adequate functioning. (Id.) Dr. Haley indicated that Ms. Geer has the ability to maintain socially appropriate behavior. (Tr. 660.) Further, Dr. Haley opined that Ms. Geer could not respond appropriately to changes in the work setting; would be off task 25% of the workday; and would likely miss four or more days of work per month due to her impairments. (Id.)
2. Jason S. Schliesser, D.C., M.P.H.
On August 12, 2021, Dr. Schliesser, Ms. Geer's chiropractor, completed a Treating Source Statement. Dr. Schliesser explained that he treated Ms. Geer's lumbar pain and sciatica. (Tr. 542.) Dr. Schliesser opined that Ms. Geer would likely be off task more than 25% of the typical workday because of her symptoms, could maintain attention and concentration for 15 minutes at a time, and would likely miss more than four days of work per month. (Id.) Dr. Schliesser further opined that Ms. Geer could lift and carry occasionally up to 10 pounds, rarely carry 10 pounds, and never carry anything over 10 pounds. (Tr. 543.) Dr. Schliesser also opined that Mr. Greer could sit/stand and walk for less than a total of one hour in a workday and required the option to sit/stand at will. (Id.)
3. Lisa Melville, OTR
On September 9, 2021, Ms. Melville, an occupational therapist, conducted a functional capacity evaluation of Ms. Geer. Ms. Melville opined that Ms. Geer could perform work at the light exertional level. (Id.) Ms. Melville noted that “significant self-limiting and inconsistent behavior heavily influenced [the] test results.” (Tr. 681.) Ms. Melville stated that Ms. Geer selflimited on 56% of the 16 tasks for the examination. (Id.) She also indicated that performance on the self-limiting tasks “indicates a minimum rather than a maximum ability.” (Id.) Ms. Melville stated that the maximum overall level of work “[could not] be determined at th[e] time due to the self-limiting and inconsistent behavior.” (Tr. 681.) Ms. Melville explained that possible causes of self-limiting behavior include: (1) pain; (2) psychosocial issues, such as fear of reinjury, anxiety, or depression; and/or (3) attempts to manipulate tests results. (Id.) According to Ms. Melville's evaluation, if self-limiting exceeds 20%, then psychosocial and/or motivational factors are affecting test results. (Tr. 682.) Ms. Melville's stated reasons for self-limiting behavior were back pain, fatigue, and weakness; dizziness; and muscle fatigue. (See id.)
D. Relevant Medical Evidence
On March 6, 2020, Ms. Geer attended a psychiatric appointment at Harbor Behavioral. (Tr. 338.). The mental status examination revealed that Ms. Geer was alert and oriented x4, presented with good grooming and hygiene, and was cooperative and pleasant. (Tr. 340-41.) She also had good eye contact and no psychomotor agitation. (Tr. 341.) Her mood was anxious and dysphoric, and she had broad affect. (Id.). Her thought processes were logical, and she reported no suicidal ideation. (Id.) She also had intact memory and recall, average intelligence, and good insight and judgment. (Id.). On May 18, 2020, Ms. Geer ceased care with Harbor Behavioral due to her psychiatrist's retirement, noting that she would seek care elsewhere. (Tr. 344.) Her condition at discharge was stable. (Id.).
On June 1, 2020, Ms. Geer presented to the emergency department and reported feeling shaky, clammy, and in a “brain fog.” (Tr. 448.) She reported that she had been experiencing these symptoms since at least last September. (Tr. 453.) Her physical examination and CT of her pelvis/abdomen was normal. (Tr. 455, 458, 467.) She was discharged with instructions to stay hydrated and follow-up with her medical providers. (Tr. 464.) A few days later, Ms. Geer followed up with Dr. Tafelski, her medical provider. (Tr. 485.) Dr. Tafelski noted that it was difficult to determine what “is going on” with Ms. Geer. (Tr. 491.) He noted that he had reviewed all blood work and x-rays from her hospitalization, and everything was in the normal range. (Id.) He indicated that “[it] appear[ed] there may be a lot of psychological overlay to her symptoms” and further stated that her diet was devoid of sugar and carbohydrates that are probably required to maintain her energy. (Id.) Dr. Tafelski advised Ms. Greer to return for an in-person follow-up visit. (Id.)
Ms. Geer saw Dr. Tafelski on July 2, 2020, noting ongoing complaints of fatigue, generalized weakness, and gastrointestinal distress. (Tr. 487.) On examination, Ms. Geer ambulated normally but had a very depressed mood. (Id.) Dr. Tafelski notes indicate that he thought Ms. Geer's fatigue and weakness was caused by depression, but Ms. Geer disagreed with this conclusion. (Tr. 488.) Rather, she attributed these issues to her gastrointestinal symptoms, though her recent blood work revealed that she was not anemic and her electrolytes and liver enzymes were all normal. (Id.) Dr. Tafelski ordered additional laboratory studies, but again noted that he believed her fatigue was psychiatric rather than related to her gastrointestinal tract. (Id.) He planned to rule out the underlying physical problem “before she w[ould] be willing to be treated for depression.” (Id.)
On October 7, 2020, Ms. Geer saw Dr. Schliesser, a chiropractor, reporting acute onset of lumbar and thoracic pain. (Tr. 748.) Two days later, Ms. Geer attended a follow-up appointment with Dr. Schliesser. (Tr. 741.) Her chief complaint was dull lumbar spine pain and aching discomfort. (Id.) Dr. Schliesser's notes indicate that Ms. Geer experienced increased lower back pain from cleaning the basement to remove her daughter's items. (Id.) Dr. Schliesser noted that Ms. Geer reported that her symptoms had improved since her last visit, but she still experiences continued lower back pain and pain with use of her spine. (Id.). Her musculoskeletal exam revealed severe restricted range of motion and decreased range of motion in her lumbar spine. (Id.) Dr. Schliesser assessed that, based on Ms. Geer's history and examination, it was “reasonable to believe that her recovery may take longer than an average patient with an uncomplicated case.” (Id.)
Ms. Geer saw Dr. Schliesser again on October 12, 2020. (Tr. 740.) Her examination revealed normal gait and normal balance. (Id.) Dr. Schliesser assessed that Ms. Geer was showing improvement and meeting expectations. (Id.) On October 15, 2020, Ms. Geer had another appointment with Dr. Schliesser. (Tr. 739.) Upon examination, Ms. Geer had normal gait and normal balance and stood without assistance, but she had joint restrictions in portions of her lower back. (Id.) Dr. Schliesser noted that Ms. Geer was “doing well with care,” but still experiencing “continued spine issues.” (Id.)
On November 2, 2020, Ms. Geer resumed psychiatric care with Dr. Haley for generalized anxiety disorder and moderate recurrent major depression. (Tr. 708.) Upon examination, Ms. Geer was well-groomed, cooperative, and calm. (Tr. 710.) She had impaired concentration and attention, circumstantial and tangential thought processes, normal speech, and intact judgment, insight, and memory (despite reporting poor working memory). (Id.) Her intelligence was average, and she had anxious mood and congruent affect. (Id.) Dr. Haley continued Ms. Geer's medications. (Tr. 708.)
From the records, it appears that Ms. Geer previously received treatment from Dr. Haley until Dr. Haley's temporary retirement in early 2020. (See Tr. 344.)
On December 14, 2020, Ms. Geer underwent a consultative psychological evaluation with Dr. Daniel Watkins, Ph.D., as part of the administrative proceedings. (Tr. 509.) She appeared somewhat timid and anxious but was appropriately dressed, groomed, and cooperative during the evaluation. (Tr. 511.) Her thought processes were logical, coherent, and goal-directed; her affect was congruent with her depressed and anxious mood; her insight was intact; and her judgment appeared adequate. (Tr. 512-13.) Dr. Watkins diagnosed Ms. Geer with major depressive disorder and generalized anxiety disorder. (Tr. 513.) He opined that Ms. Geer remained capable of understanding, remembering, and carrying out concrete or fairly abstract instructions of at least simple or moderate complexity; performing some concrete multistep tasks, with some interference from anxiety; and adequately responding to supervisors and coworkers in a work setting. (Tr. 514.) Dr. Watkins indicated that Ms. Geer did not appear to be capable of coping with ordinary and typical work pressures. (Tr. 515.)
On January 28, 2021, Ms. Geer attended a follow-up appointment with her Dr. Tafelski, her primary care provider, reporting the “exact same symptoms that she had in July.” (Tr. 538.) She reported fatigue, difficulty getting out of bed, and lack of desire to do anything. (Id.) She presented as “seeming very depressed” with a flat affect. (Id.) However, she was alert and oriented to time, place, and person. (Id.) Her recent and remote memory was normal. (Id.) Her physical examination revealed only tenderness to palpation in the epigastric area. (Tr. 539.) Dr. Tafelski noted that Ms. Geer's blood work from July was “all normal.” (Id.) Dr. Tafelski again noted that most of Ms. Geer's issues stemmed from major depression. (Id.) Dr. Tafelski also provided a gastroenterology referral. (Id.)
On February 9, 2021, Ms. Geer saw Dr. Haley, reporting a substantial increase in anxiety and depression, with an inability to focus, concentrate, retain, and integrate information. (Tr. 706.) Dr. Haley questioned the continued effectiveness of Ms. Geer's medications and discussed changes, but Ms. Geer did not wish to change her medications. (Id.) Her mental status examination revealed that she was disheveled; had impaired concentration and attention; had intact memory, despite her reports of “poor working memory;” clear speech; average intelligence; constricted affect and thought content; circumstantial and tangential thought processes, and unremarkable thought content with obsessive worry and self-condemnation. (Id.)
On April 9, 2021, Ms. Geer returned to Dr. Tafelski. (Tr. 532.) Dr. Tafelski noted that Ms. Geer reported persistent fatigue and nausea, occasional cramping, and irregular bowel movements. (Tr. 535.) Her psychiatric exam revealed that she was active and alert with normal affect, but “always seems to have somewhat of a depressed mood.” (Id.) Dr. Tafelski observed that Ms. Geer had normal recent and remote memory. (Id.). Her physical examination revealed that she was ambulating normally and did not appear in any apparent distress. (Id.). On April 12, 2021, Ms. Geer attended a follow-up psychiatric appointment with Dr. Haley. (Tr. 702.) She reported some improvement in her symptoms. (Id.) She remained on the same medications. (Id.)
On July 26, 2021, Ms. Geer again followed up with Dr. Haley. (Tr. 696.) She reported more anxiety and depression, with some near panic attacks. (Id.) Ms. Geer was depressed, ruminative, and rigid about her sense of worthlessness (Tr. 698.). Upon examination, she presented as clean but disheveled. (Id.) She was oriented but demonstrated impaired concentration and attention. (Id.). She was anxious and depressed, and her affect was congruent to her mood. (Id.) Her thought content was constricted, but insight and judgment were intact. (Id.) Her thought content revealed obsessive worry and self-condemnation. (Id.)
On August 16, 2021, Ms. Geer attended an appointment with Mr. Joel Wilson, PA, who noted that Ms. Geer's regular provider, Dr. Tafelski, had retired. (Tr. 570.) Upon examination, Ms. Geer reported diffuse muscle soreness with range of motion, but she retained intact strength in all extremities. (Tr. 571.) Ms. Geer requested that PA Wilson complete forms in support of her disability claim, and PA Wilson referred her for a functional capacity assessment. (Tr. 567, 571.)
On September 10, 2021, Ms. Geer saw Dr. Schliesser for a chiropractic follow-up appointment. (Tr. 723.) Ms. Geer reported that her complaint of dull lumbar spine pain and aching discomfort had improved since her last visit, but she still experienced continued lower back pain and pain with use of her spine. (Id.) Upon examination, Dr. Schliesser observed severe restricted motion, decreased lumbar range of motion, and paraspinal pain with compression. (Id.) Dr. Schliesser noted that Ms. Geer was showing improvement and meeting expectations. (Id.) He noted that Ms. Geer's recovery “may take longer than an average patient with an uncomplicated case.” (Id.)
On October 8, 2021, Ms. Geer attended another follow-up appointment with Dr. Schliesser. (Tr. 721.) She reported that her complaint of dull lumbar spine pain and aching discomfort had improved since her last visit, but she still experienced continued lower back pain and pain with use of her spine. (Id.) Upon examination, Dr. Schliesser observed severe restricted motion, decreased lumbar range of motion, and paraspinal pain with compression. (Id.) Dr. Schliesser determined that Ms. Geer was expected to make fair progress and recovery “with some residuals,” but based on her history and examination, he again noted that her recovery “may take longer than an average patient with an uncomplicated case.” (Id.)
IV. THE ALJ'S DECISION
The ALJ first determined that Ms. Geer met the insured status requirements of the Social Security Act through June 30, 2023. (Tr. 30.) The ALJ then determined that Ms. Geer has not engaged in substantial gainful activity since May 12, 2020, the alleged onset date. (Id.) The ALJ found that Ms. Geer had the following severe impairments: recurrent moderate major depression and generalized anxiety disorder. (Tr. 30-31.) However, the ALJ found that none of these impairments-individually or in combination-met or medically equaled the severity of a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 31-34.) The ALJ determined that Ms. Geer could work at the medium exertional level, except that she can understand, remember, and carry out concrete or fairly abstract instructions of at least simple to moderate complexity and can work in a static work setting, where the work is routine with few, if any, changes that are easily explained. (Tr. 34-42.)
Th ALJ next determined that Ms. Geer is unable to perform any past relevant work. (Tr. 42-43.) Considering Ms. Geer's age, education, work experience, and residual functional capacity, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Ms. Geer could perform, such as employment as a cleaner, laborer in stores, and detailer. (Tr. 43-44.) Accordingly, the ALJ concluded that Ms. Geer was not disabled within the meaning of the Social Security Act from her alleged onset date through the date of the ALJ's decision. (Tr. 44.)
V. LAW & ANALYSIS
A. Standard of Review
“After the Appeals Council reviews the ALJ's decision, the determination of the council becomes the final decision of the Secretary and is subject to review by this Court.” Olive v. Comm'r of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007) (citing Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538 (6th Cir. 1986) (en banc)). The Court's review “is limited to determining whether the Commissioner's decision is supported by substantial evidence and was made pursuant to proper legal standards.” Winn v. Comm'r of Soc. Sec., 615 Fed.Appx. 315, 320 (6th Cir. 2015) (quoting Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)); see also 42 U.S.C. § 405(g). “Substantial evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). If the Commissioner's decision is supported by substantial evidence, it must be affirmed, “even if a reviewing court would decide the matter differently[.]” Cutlip, 25 F.3d at 286; Kinsella v. Schweiker, 708 F.2d 1058, 1059-60 (6th Cir. 1983).
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must determine whether the Commissioner applied proper legal standards. Failure of the Commissioner to apply the correct legal standards as promulgated by the regulations is grounds for reversal. See, e.g., White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported by substantial evidence, however, a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.”).
Finally, a district court cannot uphold an ALJ's decision, even if there “is enough evidence in the record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (alteration in original)).
B. Standard for Disability
The Social Security regulations outline a five-step sequential evaluation process that the ALJ must use in determining whether a claimant is disabled: (1) whether the claimant is engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether that impairment, or combination of impairments, meets or equals any of the listings in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) if not, whether the claimant can perform her past relevant work in light of his RFC; and (5) if not, whether, based on the claimant's age, education, and work experience, he can perform other work found in the national economy. 20 C.F.R. § 404.1520(a)(4)(i)-(v); Combs v. Comm'r of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006). The claimant bears the ultimate burden of producing sufficient evidence to prove that he is disabled and, thus, entitled to benefits. 20 C.F.R. § 404.1512(a). Specifically, the claimant has the burden of proof in Steps One through Four. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at Step Five to establish whether the claimant has the RFC to perform available work in the national economy. Id.
C. Evaluation of Medical Opinions (Step Four)
At Step Four of the sequential evaluation, the ALJ must determine a claimant's RFC after considering all the medical and other evidence in the record. 20 C.F.R. § 404.1520(e). In doing so, the ALJ is required to “articulate how she considered the medical opinions and prior administrative medical findings.” 20 C.F.R. § 404.1520c(a). At a minimum, the ALJ must explain how he considered the supportability and consistency of a source's medical opinion(s), but generally is not required to discuss other factors. 20 C.F.R. § 404.1520c(b)(2). According to the regulation, the more consistent a medical opinion is with the evidence from other medical and nonmedical sources, the more persuasive the medical opinion will be. This is the consistency standard. And the regulation specifies that the more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion, the more persuasive the medical opinion will be. This is the supportability standard. See 20 C.F.R. § 404.1520(c)(1)-(2).
D. Analysis
Ms. Geer challenges the ALJ's evaluation of the medical opinions from the following medical professionals: (1) Dr. Haley; (2) Dr. Schliesser; and (3) Ms. Melville. Each argument with respect to these providers will be addressed in turn.
1. The ALJ Appropriately Evaluated Dr. Haley's Opinion.
Ms. Geer first contends that the ALJ erred in evaluating the opinion of Dr. Haley, Ms. Geer's psychiatrist.
The ALJ addressed Dr. Haley's opinion as follows:
Dr. Susan Haley, the claimant's psychiatrist, submitted a Treating Source Statement in which she opined that the claimant is markedly limited in her ability to understand, remember, or apply information, moderately limited in her ability to interact with others, extremely limited in her ability to concentrate, persist, or maintain pace, and moderately limited in her ability to adapt or manage oneself. She further opined that the claimant could maintain attention and concentration for 15 minutes, could not maintain regular attendance, required enhanced supervision, and could sometimes, but not consistently, work appropriately with the general public, coworkers, and supervisors. She stated that the claimant needed praise and positive reinforcement from supervisors but that would be insufficient to substantially reduce her anxiety and ensure adequate functioning. Yet, Dr. Haley stated that the claimant had the ability to maintain socially appropriate behavior. These last two statements are inherently inconsistent. Further, Dr. Haley opined that the claimant could not respond appropriately to changes in the work setting, would be off task 25% of the workday and likely miss 4+ days of work per month as a result of her impairments (B16F). The extreme limitations as set forth herein are inconsistent with and not supported by the totality of the record, including Dr. Haley's own treatment notes. As discussed in detail above, the claimant's mental status examinations are incompatible with the degree of severity to which Dr. Haley opines. Further, much of the opinion, as noted therein, is based upon the claimant's self-report of symptoms rather than objective examination findings or observations. As such, the opinion is not supported by nor consistent with the overall record and is therefore not found to be persuasive.(Tr. 40-41.)
As a threshold issue, the ALJ's conclusion that Dr. Haley's opinion is unpersuasive because it was mostly based on Ms. Geer's subjective complaints was an inappropriate rationale to discount the opinion's supportability. In the context of mental impairments, a plaintiff's subjective statements are an appropriate basis for a doctor's opinion on functional abilities. See Blankenship v. Bowen, 874 F.3d 1116, 1123 (6th Cir. 1989) (citing 20 C.F.R. § 404.1529). “The suggestion that a trained mental health clinician's opinions can be rejected merely because they are based upon clinical observations (including the analysis of subjectively reported symptoms) has been rejected by the Sixth Circuit.” Jearame B. v. Comm'r of Soc. Sec., No. 1:21-cv-228, 2022 WL 3154131, at *5 (S.D. Ohio Aug. 8, 2022) (citing Blankenship, 874 F.2d at 1121); see also Keeton v. Comm'r of Soc. Sec., 583 Fed.Appx. 515, 526 (6th Cir. 2014) (“Even if [the doctor] had based his medical opinion solely on Plaintiff's own reports of hallucinations, nightmares, flashbacks, isolation, and psychological numbness, that likely would not have provided sufficient basis for the ALJ's rejection of his medical opinion.”); Todd v. Comm'r of Soc. Sec., No. 3:20-cv-1374, 2021 WL 2535580, at *8 (N.D. Ohio June 3, 2021), report and recommendation adopted, 2021 WL 2530846 (N.D. Ohio June 21, 2021) (“[A] critique that rejects the opinion of a psychological source because it relied on a patient's report of symptoms ... would be an improper basis upon which to discount the opinion.”).
The remaining question is whether the ALJ's other reasons for finding Dr. Haley's opinion to be unpersuasive are supported by substantial evidence. As reproduced above, the ALJ found Dr. Haley's opinion unpersuasive because the limitations were “inconsistent with and not supported by the totality of the record, including Dr. Haley's own treatment notes.” (Tr. 41.) The ALJ further noted, referencing her previous discussion of the medical evidence, that Dr. Haley's mental status examination were “incompatible with the degree of severity to which Dr. Haley opines.” (Id.)
Ms. Geer disagrees with the ALJ's findings and highlights findings from Dr. Haley's examination, such as dishevelment, impaired concentration and attention, circumstantial and tangential thought processes, and a constricted affect. (ECF Doc. 6, PageID#848 (citing Tr. 698, 702, 709-10.)) She acknowledges that the ALJ's summary of the evidence generally referenced these same findings (along with other unremarkable findings), but contends that, given these mixed findings, the ALJ did not sufficiently explain her reasoning. (See id.) The Commissioner disagrees and asserts that the ALJ found Dr. Haley's opinion as unpersuasive by stating the extreme limitations contained therein were not consistent with or supported by the record, including Dr. Haley's own treatment notes. (ECF Doc. 8, PageID#864 (citing Tr. 46).) The Commissioner further contends that Ms. Geer gives “short thrift to the additional evidence contained in the record, as well as the ALJ's discussion of that evidence.” (See ECF Doc. 8, PageID#865-66.)
Ms. Geer's arguments are well-taken. Reading the decision as a whole and with common sense, the ALJ discussed the specific treatment records that she believed to be inconsistent earlier in her decision. Hill v. Comm'r of Soc. Sec., 560 Fed.Appx. 547, 551 (6th Cir. 2014) (noting that the ALJ's entire decision must be considered). However, upon closer examination of the ALJ's analysis and summary of the treatment records, it is evident that the ALJ failed to provide sufficient rationale for the consistency of Dr. Haley's opinion. The ALJ highlighted unremarkable findings from Dr. Haley's mental status examinations, including that Ms. Geer was cooperative, was alert and oriented, had average intelligence, had intact insight, had adequate judgment, and had normal memory. (Tr. 37; see, e.g., Tr. 698, 702, 709, 710.) But, as Ms. Geer contends, there are other specific findings from the mental status examinations that would seemingly support Dr. Haley's opinion. For example, Dr. Haley observed at some mental status examinations that Ms. Geer presented with impaired concentration and attention, constricted affect, constricted thought content, anxious and depressed mood, and a circumstantial and tangential thought process. (Tr. 37; see, e.g., Tr. 698, 702, 709, 710.)
The ALJ fails to explain how some of these findings render Dr. Haley's opinion inconsistent. Thus, “[b]ecause the ALJ's summary of evidence includes both supportive and contradictory information, it does little to explain the ALJ's reasoning or to provide sufficient rationale for the reviewing court.” Melton v. Comm'r of Soc. Sec. Admin, No. 5:21-CV-02193-BYP, 2022 WL 18358789, at *9 (N.D. Ohio Oct. 13, 2022), report and recommendation adopted sub nom. Melton v. Kijakazi, 2022 WL 17985681 (N.D. Ohio Dec. 29, 2022).
The Commissioner relies on the ALJ's Step Two findings that Ms. Geer had moderate mental limitations as support that the ALJ offered sufficient explanation for the ALJ's conclusion. (See ECF Doc. 8, PageID#864-65.) But these Step Two findings provide merely scant references to Dr. Haley's treatment notes. (See generally Tr. 33-34.) Further, the Commissioner offers no explanation as to how the ALJ considered or explained the inconsistencies between Dr. Haley's opinion and her treatment notes. (See ECF Doc. 8, PageID#864-65.) The regulations require the ALJ to consider and explain how she considered “the relevance of the supporting explanations and objective medical evidence presented by a medical source to support their opinions.” 20 C.F.R. § 404.1520c(c)(1).
Here, as demonstrated above, the ALJ failed to do so. Without an explanation or sufficient particularity from the ALJ, judicial review of whether there is substantial evidence supporting the ALJ's determination in this respect is not possible. See Lester v. Saul, No. 5:20-CV-01364, 2020 WL 8093313, at *14 (N.D. Ohio Dec. 11, 2020), report and recommendation adopted sub nom. Lester v. Comm'r of Soc. Sec., 2021 WL 119287 (N.D. Ohio Jan. 13, 2021) (“Although the new standards are less stringent in their requirement for the treatment of medical opinions, they still require that the ALJ provide a coherent explanation of his reasoning.”). Accordingly, I recommend that this case should be remanded to allow the ALJ to adequately consider and explain the persuasiveness of Dr. Haley's opinion.
2. The ALJ Did Not Appropriately Evaluate Dr. Schliesser's Opinion.
Ms. Geer also contends that the ALJ erred in evaluating the opinion of Dr. Schliesser, Ms. Geer's chiropractor. (ECF Doc. 6, Page#850-52.) Ms. Geer first argues that the ALJ's assessment of Dr. Schliesser's opinion is “devoid of any specific medical record citation” and fails to acknowledge objective physical examination findings that supported Dr. Schliesser's opinion, i.e. “severe” restricted range of motion, tenderness to palpation, positive Yeoman's sign for low back pain, and pain with extension. (Id. at PageID#850 (citing Tr. 725, 730, 734, 737.)) Next, Ms. Geer asserts that the ALJ misrepresented the record when stating that Dr. Schliesser “regularly reports that [Ms. Geer] is expected to recover with an average timeframe.” (Id. (citing Tr. 41.)) Ms. Geer then contends that the ALJ misinterpreted the context and timeline of a statement she made to Dr. Schliesser. (Id. at PageID#851.) And she argues that even if the ALJ understood this statement in the correct context, it does not mean Ms. Geer could perform medium work. (Id.) Thus, Ms. Geer maintains that the ALJ failed to support her conclusion regarding the persuasiveness of Dr. Schliesser's opinion with substantial evidence. (Id. at PageID#852.)
The ALJ addressed Dr. Schliesser's opinion as follows:
The claimant's chiropractor, Jason S. Schliesser, submitted a Treating Source Statement dated August 2021 in which he opined that the claimant would likely be off task more than 25% of the workday, could maintain attention and concentration for 15 minutes at a time, and would likely miss more than four days of work per month. He further opined that the claimant could lift and carry occasionally up to 10 pounds, rarely 10 pounds and never anything over, that she could sit/stand and walk less than one hour total in a workday and required the option to sit/stand at will. He stated that the claimant required the option to lie down or recline throughout the workday for 30 minutes at a time, 2-4 times per day, that her legs needed elevated while sitting, that she could occasionally reach overhead, frequently handle, finger, and feel, rarely reach in all other directions, or push and pull, and occasionally use foot controls. Postural limitations of occasional climbing of ramps and stairs, frequent rotation of the head and neck, rarely balancing, stooping, kneeling, and never climbing ladders and scaffolds, crouching and crawling were also provided. Finally, the claimant was limited to no exposure to unprotected heights and moving mechanical parts, occasional operation of a motor vehicle, rare exposure to humidity and wetness, and no exposure to pulmonary irritants, extreme temperatures, and vibrations (B10F). This opinion is not supported by the record as a whole. In particular, Dr. Schliesser's own treatment notes do not support the degree of severity. As detailed above, he regularly reports that she is expected to recover with an average timeframe. Examination findings do not support the degree of severity. Further, the claimant's self-report of activity,
including cleaning the basement and removing her daughter's belongings, is inconsistent with the severity to which he opines. The overall record likewise does not support the severe limitations, with very little positive objective findings in the record. Accordingly, this opinion is not found to be persuasive.(Tr. 41.)
The ALJ failed to apply proper legal standards in evaluating Dr. Schliesser's opinion. As reproduced above, the ALJ first found Dr. Schliesser's opinion unpersuasive based on the ALJ's conclusion that Dr. Schliesser's treatment notes reported that Ms. Geer is “expected to recover with an average timeframe,” and his examination findings do not support the degree of severity opined. (Id.) The ALJ also found that Ms. Geer's self-reported activity is inconsistent with the severity to which Dr. Schliesser opines. (Id.) Finally, the ALJ determined that the overall record did not support the severe limitations as there were “very little positive objective findings in the record.” (Id.) The ALJ's reasons are not supported by substantial evidence.
The ALJ's statement that Dr. Schliesser noted that Ms. Geer is expected to recover with an average timeframe is wholly inaccurate. Indeed, Dr. Schliesser repeatedly observed that Ms. Geer's recovery “may take longer than an average patient with an uncomplicated case.” (Tr. 721, 723, 725, 727, 734) (emphasis added). An ALJ may “not mischaracterize contrary evidence to support a conclusion.” See Stanfield v. Colvin, No. 2:12-CV-213-KSF, 2013 WL 3935071, at *3 (E.D. Ky. July 30, 2013) (citing Cornett v. Benham Coal, Inc., 227 F.3d 569 (6th Cir. 2000)). An ALJ's inaccurate statement, however, may not necessarily be fatal if the ALJ provides other valid reasons supported by substantial evidence. See, e.g., Garcia v. Comm'r of Soc. Sec., No. 1:16 CV 2682, 2019 WL 838371, at *12 (N.D. Ohio Feb. 12, 2018) (“The undersigned finds, however, that even if this reason lacks support in the record, it is harmless because the ALJ's other reasons provide substantial evidence.”). Thus, I must determine whether the ALJ provided other valid reasons supported by substantial evidence to find Dr. Schliesser's opinion unpersuasive.
The ALJ concluded that Ms. Geer's statement to Dr. Schliesser that she was “cleaning the basement and removing her daughter's belongings” was inconsistent with the severity of Dr. Schliesser's opined limitations (ECF Doc. 6, PageID#851.) But the ALJ appeared to misinterpret the timeline of Ms. Geer's statement to Dr. Schliesser. Earlier in the decision, the ALJ wrote:
Notably, in October 2021, just a few weeks prior to her hearing, these records show that the claimant reported ongoing but improved lower back pain as compared to her last visit, despite the fact that she had recently cleaned up the basement and removed her daughter's things.(Tr. 40) (emphasis added). Yet Ms. Geer's statement that she had increased back pain from removing her daughter's belongings from the basement first appeared in Dr. Schliesser's notes in October 2020-a year prior-and the October 2021 notes are nearly identical to those from October 2020. (See Tr. 721, 741.) This suggests that Ms. Geer had not “recently cleaned up the basement and removed her daughter's things” in or around October 2021. (See Tr. 40.) Rather, the notes appear to indicate that she had done this activity at some point before or around October 2020. (See Tr. 741.)
Ms. Geer also contends that, even if she had been cleaning the basement in both October 2020 and 2021, this fact does not mean she could perform medium work, which requires the ability to lift up to 50 pounds at a time, with frequent lifting or carrying up to 25 pounds. (ECF Doc. 6, PageID #851 (citing 20 C.F.R. § 404.1567(c).)) Ms. Geer's argument is well-taken because the ALJ cites no evidence-or offer any explanation-demonstrating how a single reference to Ms. Geer “picking up her daughter's items” from the basement is a sufficient basis to reject Dr, Schliesser's significant limitations and instead find Ms. Geer could perform medium work. The ALJ thus fails to demonstrate how such a conclusion is supported by substantial evidence.
The Commissioner contends that Ms. Geer “seeks to nit-pick the ALJ's reasoning” but makes no attempt to explain how the totality of the evidence supports the extent of the limitations Dr. Schliesser identified. (ECF Doc. 8, PageID#867.) Specifically, the Commissioner notes that Dr. Schliesser's examination notes documented pain and reduced range of motion, but otherwise noted a normal gait and balance and improvement with treatment. (Id. (citing Tr. 721-41, 747-79.)) The Commissioner also asserts that the ALJ's decision pointed out that other examination records, i.e., that Ms. Geer was observed to ambulate normally, have normal range of motion, and intact strength (Tr. 31, 37-39, 445, 487, 538-39, 570, 571), failed to provide support for Dr. Schliesser's opinion. (ECF Doc. 8, PageID#867.) The Commissioner further notes that the ALJ also explained that Ms. Geer herself testified that chiropractic care kept her mostly pain free, she only occasionally took an over-the-counter medication for additional relief, and she had not sought any additional specialized care for her back. (Tr. 30-31; see Tr. 66, 72-73.) Thus, the Commissioner concludes that the ALJ's conclusion is supported by substantial evidence.
The Commissioner's arguments are not well-taken. First, the ALJ provided no direct citation to evidence for her reasoning. (See Tr. 40.) Failure to provide citations is not necessarily error because a court may read the decision as a whole and with common sense to find support for the ALJ's findings. See Buckhannon v. Astrue, 368 Fed.Appx. 674, 678-79 (7th Cir. 2010) (“[W]e read the ALJ's decision as a whole and with common sense.”). But even reading the decision as a whole and with common sense, the ALJ's summary of the evidence offers little, if any, analysis of the chiropractic records. Significantly, as reproduced above, the ALJ's only discussion of Dr. Schliesser's treatment records, beyond her evaluation of the opinion evidence, was when she noted Ms. Geer's statement that she had improved lower back pain. (See Tr. 40.) The Commissioner thus invites this Court to infer that the ALJ adequately discusses the supportability and consistency of Dr. Schliesser's opinion and points to evidence that plausibly could support the ALJ's conclusion. (See ECF Doc. 8, PageID#867.) But in doing so, the Commissioner creates a piecemeal analysis that was not articulated by the ALJ. Despite conclusorily stating the treatment records and examination findings do not support Dr. Schliesser's opined limitations, the ALJ fails to provide even a general explanation of what findings a reviewing court should look to make such a determination, such as normal gait or range of motion. (See Tr. 41.) Moreover, while the Commissioner points to the ALJ's Step Two finding that Ms. Geer's lumbar impairment is non-severe as substantial evidence supporting the ALJ's persuasiveness evaluation, this was not articulated by the ALJ as a basis to discount Dr. Schliesser's opinion. (See id.) Thus, the Commissioner's arguments constitute an impermissible post hoc rationalization rather than any adequate reasoning presented by the ALJ in her decision. Finally, Ms. Geer correctly points out that the ALJ overlooked findings that support Dr. Schliesser's opined limitations, such as severe restricted range of motion, tenderness to palpation, and pain with extension. (See, e.g., Tr. 725, 730, 734, 737.)
The ALJ has the duty to assess the medical and non-medical evidence and determine an RFC finding. But the reasons the ALJ offered here are inaccurate, not supported by substantial evidence, and lack any clear citation to record evidence to guide this Court's review. The ALJ must build an accurate and logical bridge between the evidence and the ALJ's conclusion. Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011). Where, as here, “the ALJ's decision lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded.” Castello v. Comm' r of Soc. Sec., No. 5:09 CV 2569, 2011 WL 610590, at *2 (N.D. Ohio Jan. 10, 2011), report and recommendation adopted sub nom. Castello v. Comm'r of Soc. Sec., 2011 WL 610138 (N.D. Ohio Feb. 10, 2011)(quoting Giles v. Astrue, 483 F.3d 483, 486 (7th Cir. 2007) (internal quotation omitted); Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995) (the ALJ's analysis must allow the reviewing court to trace the path of reasoning)). Accordingly, I recommend that the Court vacate and remand this matter for an ALJ to appropriately consider the persuasiveness of Dr. Schliesser's opinion in accordance with the Social Security regulations.
3. The ALJ Did Not Appropriately Evaluate Ms. Melville's Opinion.
Ms. Geer argues that the ALJ erred in evaluating Ms. Melville's report, which opined that Ms. Geer could perform work at the light exertional level. (ECF Doc. 6, PageID#852-53.) She contends that the ALJ failed to acknowledge that Ms. Melville was able to make “at least some objective findings” regarding her maximum tolerance for certain activities-including her maximum tolerance for pushing-based on performance of tasks that were not self-limited. (Id. at PageID#852.) Ms. Melville's report indicates Ms. Geer has a maximum tolerance for pushing 15 pounds occasionally and did not indicate Geer self-limited on this task. (Tr. 685.) Yet Ms. Greer argues that the ALJ failed to discuss this finding in her decision or include any pushing or pulling limitations in the RFC. (ECF Doc. 6, PageID#852 (citing Tr. 34, 39, 685).) She also asserts that the ALJ's statement that Ms. Geer was not an “acceptable medical source” still requires the ALJ to analyze Ms. Melville's opinion as she would for other sources. (Id. (citing 20 C.F.R. § 404.1520c(b); § 404.1513(2)(i)-(iv); and §404.1502(d).)) Finally, she contends that the ALJ's failure to address the pushing maximum was not harmless error because it is unclear how this would have impacted Ms. Geer's ability to perform the medium exertional level jobs the VE identified. (Id. at PageID#853.) Further, Ms. Greer argues that a limitation to “light” work would have resulted in a disability finding because Ms. Greer was “closely approaching retirement age” on her onset date. (Id. (citing 20 C.F.R. § 404.1563(e).)) Ms. Geer's arguments are well-taken.
The ALJ assessed Ms. Geer's opinion as follows:
The claimant underwent a functional capacity assessment on September 9, 2021 by Lisa Melville, OTR (B17F/18-26). Ms. Melville concludes that the claimant could do work at the light exertional level. However, she noted that, “the overall level of work was significantly influenced by the claimant's self-limiting and inconsistent behavior. Therefore, the Light level of work indicates a minimum ability rather than a maximum ability. A maximum overall level of work cannot be determined at this time due to the self-limiting and inconsistent behavior.” (B17F/18). The therapist also noted that the claimant's significant self-limiting behavior “heavily influenced test results.” (B17F/18). While an opinion of an occupational therapist is not an acceptable medical source for diagnostic purposes under the regulations, the regulations do recognize them as “other sources” and evidence submitted by them should be considered to determine the severity of the claimant's impairments and how they affect the claimant's ability to work (20 CFR 404.1513, 404.1527). However, as noted by the therapist, the opinion represents the minimum vs. the maximum the claimant can do. As such, the opinion is not relevant to our consideration. Thus, while an occupational therapist is not an acceptable medical source as defined in the regulations, the undersigned has considered Ms. Melville's opinion but does not find it persuasive.(Tr. 40.)
Here, the ALJ erred in evaluating Ms. Melville's opinion. As both parties acknowledge, Ms. Melville indicated that Ms. Geer could perform work at the light exertional level, but Ms. Melville explained that her assessment reflected “a minimum ability rather than a maximum ability” and that a “maximum overall level of work cannot be determined at this time due to the self-limiting and inconsistent behavior.” (Tr. 681.) In some cases, a claimant's “poor effort” can serve as grounds to discredit a medical opinion. See, e.g., King v. Comm'r of Soc. Sec., No. 5:16-cv-1, 2017 WL 467827, at *13 (N.D. Ohio Feb. 2, 2017).
But Brown v. Comm'r of Soc. Sec., No. 21-cv-01042, 2022 WL 2833810 (N.D. Ohio July 20, 2022), demonstrates why this rationale is inappropriate here. In Brown, the ALJ discounted an occupational therapist's assessment because “the claimant's effort during his examination was inconsistent and suboptimal.” Id. at *2. The court in Brown found that the ALJ's reasoning was erroneous because the occupational therapist's opinion suggested that the claimant's inconsistent effort was explained by the pain the claimant was experiencing, “thereby potentially adding credibility to the assessment of her physical limitations.” Id. at *3. The Brown court also found that the ALJ erred because he failed to address the consistency factor in assessing the occupational therapist's opinion. Id. Specifically, the Brown court noted that the ALJ failed to comply with the regulations by not discussing the occupational therapist's evidence in relation to other medical evidence. Id. Brown applies here. Although the ALJ correctly noted Ms. Geer's inconsistent effort, the ALJ overlooked that Ms. Melville's opinion suggests that Ms. Geer's inconsistent effort was, in part, explained by the pain she was experiencing. Specifically, Ms. Melville explained that the possible causes of Ms. Greer's self-limiting behavior include: (1) pain; (2) psychosocial issues, such as fear of reinjury, anxiety, or depression; and/or (3) attempts to manipulate tests results. (Tr. 681.) Further, Ms. Melville's report observed that Ms. Geer's stated reasons for self-limiting behavior during the functional capacity evaluation were back pain, fatigue, and weakness; dizziness; and muscle fatigue. (See Tr. 681; see also Tr. 683, 685-86.) And, as pointed out by Ms. Geer, the report did observe Ms. Geer had maximum ability to push 15 pounds occasionally, despite the alleged inconsistent and self-limiting behavior she displayed during the examination with other activities. (Tr. 685.)
The Commissioner contends Ms. Geer's argument is unavailing because the ALJ noted Ms. Melville's notation that Ms. Geer's inconsistent behavior “heavily influenced test results,” meaning that the overall validity of the evaluation was called into question, and it was reasonable for the ALJ to take Ms. Melville at her word. (ECF Doc. 8, PageID#868 (citing Tr. 681, 687.)) But the Commissioner's argument overlooks that the activities that were marked as tasks on which Ms. Geer self-limited did not include the pushing activity. (Tr. 685.) Thus, it is unclear how the ALJ conclude that Ms. Geer's self-limiting behavior influenced this specific test result when even Ms. Melville's report did not indicate such behavior was applicable to this category. (See id.) The Commissioner's argument therefore constitutes an improper post hoc rationalization for the ALJ's flawed reasoning. Blackburn v. Colvin, No. 5:12CV2355, 2013 WL 3967282, at *8 (N.D. Ohio July 31, 2013) (“[A]rguments [crafted by defense counsel] are of no consequence, as it is the opinion given by an administrative agency rather than counsel's ‘post hoc rationale' that is under the Court's consideration.”).
Nowhere in the ALJ's discussion of Ms. Melville's opinion does she note or address the pushing finding. It is well established that an ALJ may not ignore or overlook contrary lines of evidence. Fleischer v. Astrue, 774 F.Supp.2d 875, 880 (N.D. Ohio 2011) (citing Bryan v. Comm'r of Soc. Sec., 383 Fed.Appx. 140, 148 (3d Cir. 2010) (“The ALJ has an obligation to ‘consider all evidence before him' when he ‘mak[es] a residual functional capacity determination,' and must also ‘mention or refute [...] contradictory, objective medical evidence' presented to him.”)). Thus, the Commissioner does not establish that the ALJ's findings are supported by substantial evidence.
The ALJ's evaluation is also deficient because she failed to adequately analyze Ms. Melville's opinion under the Social Security regulations. Under the agency regulations, an occupational therapist, such as Ms. Melville, is not an “acceptable medical source” entitled to the type of “controlling weight” an “acceptable medical source” enjoys. See 20 C.F.R. § 404.1502(a); 20 C.F.R. § 404.1520c. But she is a “medical source” whose medical opinion must be considered under the framework of the new regulations. 20 C.F.R. § 404.1520c; see, e.g., Butler v. Comm'r of Soc. Sec., No. 20-CV-10836, 2021 WL 4755608, at *10 (E.D. Mich. Mar. 23, 2021) (finding that ALJ was required to evaluate opinion from an occupational therapist “as a medical opinion, albeit a non-acceptable one”), report and recommendation adopted, 2021 WL 4472773 (E.D. Mich. Sept. 30, 2021); see also Espino v. Comm'r of Soc. Sec., No. 5:22-CV-01544-DAC, 2023 WL 4107923, at *11 (N.D. Ohio June 21, 2023) (observing that a physical therapist is a non-acceptable medical source that requires consideration from the ALJ); Hannahs v. Comm'r of Soc. Sec., No. 20-CV-01905, 2021 WL 8342817, at *10 (N.D. Ohio Dec. 15, 2021) (finding that a physical therapist is not an acceptable medical source but still a medical source whose opinion must be considered).
Here, the ALJ failed to articulate the consistency factor as required under agency regulations. An ALJ does not necessarily err if she does not use the terms “supportability” or “consistency” in her evaluation, so long as the ALJ makes findings relative to the opinion related to supportability and consistency. See Lawrence v. Comm'r of Soc. Sec., No. 1:21-CV-01691-JG, 2023 WL 2246704, at *20 (N.D. Ohio Jan. 19, 2023), report and recommendation adopted, 2023WL 2242796 (N.D. Ohio Feb. 27, 2023) (finding that the ALJ “made findings relative to the opinion related to supportability and consistency” despite not using the terms supportability or consistency in his opinion evaluation); Anteer v. Kijakazi, No. 3:20-CV-00952, 2021 WL 4424475, at *16 (N.D. Ohio Sept. 27, 2021) (finding no error with the ALJ's failure to use the term “supportability and consistency” when evaluating an opinion where the ALJ's findings relative to the opinion related to “supportability and consistency”).
But the Commissioner here fails to demonstrate-and independent review of the ALJ's decision does not reveal-how the ALJ complied with the regulations' framework. As discussed above, the ALJ failed to address Ms. Melville's evidence in relation to other medical evidence. 20 C.F.R. § 404.1520c(c)(2) (“The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources.. .in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.”); Brown, 2022 WL 2611297, at *10 (finding ALJ erred because ALJ “omitted any discussion of consistency in evaluating [occupational therapist's] opinion”).
The failure to apply the correct legal standards is grounds for reversal. See, e.g., Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported by substantial evidence, however, a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of substantial right.”). Accordingly, I find that remand is required for further consideration of Ms. Melville's opinion.
VI. RECOMMENDATION
Based on the foregoing, I RECOMMEND that the Court VACATE and REMAND the Commissioner's final decision.
VII. NOTICE TO PARTIES REGARDING OBJECTIONS
Local Rule 72.3(b) of this Court provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report made pursuant to Fed.R.Civ.P. 72(b) within fourteen (14) days after being served with a copy thereof, and failure to file timely objections within the fourteen (14) day period shall constitute a waiver of subsequent review, absent a showing of good cause for such failure. Such party shall file with the Clerk of Court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. Any party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. The District Judge to whom the case was assigned shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The District Judge need
conduct a new hearing only in such District Judge's discretion or where required by law, and may consider the record developed before the Magistrate Judge, making a determination on the basis of the record. The District Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.Id. (emphasis added).
Failure to file objections within the specified time may forfeit the right to appeal the District Court's order. Berkshire v. Beauvais, 928 F.3d 520, 530-531 (6th Cir. 2019). Objections must be specific and not merely indicate a general objection to the entirety of the report and recommendation; a general objection has the same effect as would a failure to object. Howard v. Sec'y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Stated differently, objections should focus on specific concerns and not merely restate the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge without specific objections ‘wastes judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates Act.'” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, at *2 (W.D. Ky. June 15, 2018) (quoting Howard, 932 F.2d 505). The failure to assert specific objections may in rare cases be excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79 (6th Cir. 2019).