Vail v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
GARRETT SCOTT VAIL,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
CASE NO. 1:25-cv-1203
DISTRICT JUDGE
PATRICIA A GAUGHAN
MAGISTRATE JUDGE
JAMES E. GRIMES JR.
REPORT &
RECOMMENDATION
Plaintiff Garrett Scott Vail filed a Complaint against the Commissioner
of Social Security seeking judicial review of the Commissioner’s decision
denying disability insurance benefits. This Court has jurisdiction under 42
U.S.C. §§ 405(g) and 1383(c). The Court referred this matter to a Magistrate
Judge under Local Rule 72.2(b)(1) 	for the preparation of a Report and
Recommendation. Following review, and for the reasons stated below, I
recommend that the District Court vacate and remand the Commissioner’s
decision.
Procedural history
In May 2024, Vail filed an application for disability insurance benefits,
alleging a disability onset date of April 2012, which he later amended to July
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 1 of 25. PageID #: <pageID>

2
1, 2016.1 Tr. 15. In his application, Vail claimed disability due to “disabled
veterans rated 100% permanent and total,” sleep apnea, fibromyalgia, chronic
sinusitis, social anxiety, restless leg syndrome, insomnia, prostatitis, carpal
tunnel, knee tendonitis, high 	blood pressure and 	cholesterol, Raynaud’s
syndrome, GERD, allergic rhinitis, chronic fatigue, PTSD, “breath issues,” and
fatty 	liver. 	Tr. 	281. 	The 	Social 	Security 	Administration 	denied Vail’s
application and his motion for reconsideration. Tr. 58, 64. Vail then requested
a hearing before an Administrative Law Judge (ALJ). Tr. 92.
In February 2025, an ALJ held a hearing, during which Vail and a
vocational expert testified. Tr. 30–57. 	The next month, the ALJ issued a
written decision finding that Vail was not disabled. Tr. 15–24. 	The ALJ’s
decision became final on April 9, 2025, when the Social Security Appeals
Council declined further review. Tr. 1–3; see 20 C.F.R. § 404.981.
Vail filed this action on June 6, 2025. Doc. 1. He asserts the following
assignment of error:
Whether the ALJ’s residual functional capacity finding is unsupported
by substantial evidence. Whether the ALJ erred … when failing to follow
20 C.F.R. §§ 404.1504, 404.1520c, and 404.1529 and SSR 16-3p.
Doc. 8, at 1.
1 	“Once a finding of disability is made, the [agency] must determine the
onset date of the disability.” McClanahan v. Comm’r of Soc. Sec., 193 F. App’x
422, 425 (6th Cir. 2006).
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 2 of 25. PageID #: <pageID>

3
Evidence
Personal and vocational evidence
Vail was 50 years old on his alleged onset date. Tr. 34, 177. He has a
college education. Tr. 282. Vail served in the Air Force from 1984 to 1990, 2003
to 2005, and 2008 to 2010. Tr. 244.
Medical evidence
Vail “was medically retired with a pension from civil service in April
2012 secondary to fibromyalgia, sleep apnea and other health related issues.”
Tr. 1024. His date last insured2 was December 31, 2018. Tr. 201. This means
that Vail must show that he was disabled between July 2016 and December
2018.
Evidence pre-dating the relevant period
In October 2010, Vail was diagnosed with fibromyalgia, Tr. 372–73, for
which he took Lyrica, Tr. 357.
In June 2011, while working as an Airfield manager in Colorado with
the Air Force, Vail had an appointment at a Veterans Affairs (VA) clinic for
obstructive sleep apnea and “maintenance insomnia” (waking up at night and
being unable to return to sleep). Tr. 357. Due to his sleep problems, Vail had
excessive daytime somnolence and difficulty concentrating at work. Tr. 357.
2 	To be entitled to disability insurance benefits, a claimant must be a
wage-earner who accumulated sufficient earning credits and became disabled
before the end of his or her insured date. See, e.g., 42 U.S.C. § 423(c)(1); see also
Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988); Soc. Sec. Disab. Claims Prac.
& Proc. § 5:3 (2nd ed. 2022).
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 3 of 25. PageID #: <pageID>

4
He had a CPAP machine3, which he was only able to wear about three hours a
night. Tr. 357. Medications (Lunesta, Ambien, Sonata, and Rozerem) had not
helped. Tr. 357. Vail saw a behavioral medicine doctor, who helped him
improve his sleep efficiency and fall asleep more easily, but Vail still woke up
several times a night for unknown reasons. Tr. 357.
In January 2012, 	Vail saw Physician Assistant James Kuhn for a
compensation and pension exam at a VA medical center in Ohio.4 Tr. 1077–98.
Kuhn’s questionnaire stated that Vail had been diagnosed with fibromyalgia.
Tr. 1091. He indicated that Vail exhibited tender or trigger points in the
following areas: bilateral lower cervical region; bilateral occiput, trapezius
muscle, and elbow. Tr. 1092–93. Kuhn stated that Vail’s fibromyalgia did not
affect his ability to work. Tr. 1093.
In January 2013, Vail saw John Smits, M.D., for a compensation and
pension exam at a VA medical center in Colorado. Tr. 1029–64. Tr. 1030. Dr.
Smits indicated that Vail had sleep apnea, fibromyalgia, chronic fatigue
syndrome, musculoskeletal issues, and issues with his knee and lower leg. Tr.
1030–31. Regarding fibromyalgia, Vail exhibited tender or trigger points in the
3 	A CPAP (continuous positive airway pressure) machine is a common
treatment for sleep apnea. It keeps a person’s airways open during sleep,
ensuring that he or she receives oxygen. See CPAP Machine, Cleveland Clinic
Health Library, https://my.clevelandclinic.org/health/treatments/22043-cpap-
machine [https://perma.cc/H27A-GXZR].
4 	A compensation and pension (C&P) exam is performed when a veteran
files a VA disability claim. See https://www.va.gov/resources/va-claim-exam/
[https://perma.cc/PTV8-6E4V]
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 4 of 25. PageID #: <pageID>

5
following areas: bilateral low cervical region, bilateral second rib, bilateral
occiput, bilateral trapezius 	muscle, 	bilateral supraspinatus 	muscle, 	and
bilateral elbows. Tr. 1035. Dr. Smits stated that fibromyalgia affected Vail’s
ability to work, and explained:
The veteran reports that over the preceding year
when he was working as an Airfield manager he lost
approximately 1–2 days of work time every week due
to fatigue. He reports that he also had difficulty
doing the physical training activities which were
required while in the military due to the fatigue and
muscular pain. His wife works and he is a stay-at-
home father, and he has not attempted to go back to
work since his military discharge. He feels less
stressed when he is not working, and he believes
that this has helped his fibromyalgia condition.
Tr. 1037. Dr. Smits clarified that Vail did not have and had not been diagnosed
with chronic fatigue syndrome. Tr. 1038. He wrote that in 2008 Vail had been
diagnosed with left knee degenerative joint disease, Tr. 1041, and that he had
sleep apnea, Tr. 1047. Dr. Smits wrote that Vail’s sleep apnea affected his
functioning in the following way: “The veteran reports that over the preceding
year he lost approximately 1–2 days of work time every week due to fatigue.”
Tr. 1048.
The 	same 	day, 	Vail 	saw 	Donna 	Peters, 	Psy.D., 	for 	a 	mental
compensation and pension exam for insomnia and chronic fatigue. Tr. 1018–
19, 1023–28. Vail described his daily routine as follows:
The Veteran wakes up at approximately 7 a.m. He
will have coffee, do computer work, have breakfast
and take his stepson to school. He will return home
and clean, prepare meals[,] engage in yard work, and
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 5 of 25. PageID #: <pageID>

6
run errands to include grocery shopping. He will help
his Stepson with homework and coaches his stepson’s
basketball team on most evenings. He sleeps between
10 and 10:30 p.m. He has 2 full meals per day. His
interests include flying, golfing, fishing and coaching.
Tr. 1023–24. Vail’s mental exam was normal and he scored a 30 out of 30 on a
cognitive exam. 	Tr. 1024. 	Vail reported experiencing the following sleep
symptoms most nights: taking about 60 to 90 minutes to fall asleep; waking up
four to five times per night but able to return to sleep within minutes; and
averaging sustained sleep for three to four hours per night. Tr. 1024. Vail didn’t
wear a CPAP mask because it made him anxious. Tr. 1024. Instead, to treat
his sleep apnea, he used a dental apparatus. Tr. 1024. Vail had participated in
three sleep studies and continued to have issues with sleep apnea. Tr. 1024.
He 	reported extreme 	fatigue 	on 	wakening, 	which 	remained 	constant
throughout the day. Tr. 1024. He napped during the day if needed. Tr. 1024.
Vail reported low energy levels due to fatigue, and some difficulties completing
tasks when he had an especially difficult time sleeping the night before. Tr.
1024. His sleep problems also worsened his physical health issues. Tr. 1024.
Medications 	and 	other 	suggested 	treatments 	(sleep 	log, 	sleep-hygiene
techniques) did not help. Tr. 1024.
Dr. Peters wrote that Vail “would have 1–2 missed days of work a week
due to low energy levels.” Tr. 1024. 	He “appear[ed] to have symptoms of
primary insomnia.” Tr. 1024. Dr. Peters diagnosed “likely” primary insomnia.
Tr. 1024. The form asked about Vails “occupational and social impairment,”
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 6 of 25. PageID #: <pageID>

7
and 	Dr. 	Peters selected the 	option that 	said: 	“Occupational and 	social
impairment with occasional decrease in work efficiency and intermittent
periods of 	inability 	to 	perform 	occupational 	tasks, 	although 	generally
functioning 	satisfactorily, 	with 	normal 	routine 	behavior, 	self-care 	and
conversation.” Tr. 1026. 	When explaining Vail’s occupational history, Dr.
Peters reiterated Vail’s reports that during the year 2012, he called off work
one to two days per week due to fatigue. Tr. 1027. Dr. Peters described Vail’s
reports of past mental health treatment and said that he was not at that time
seeing a mental health professional. Tr. 1027. Vail had previously sought
treatment for sleep problems and tried Lunesta, Flexeril, Trazodone, Ambien,
and Sonata, which had not helped. Tr. 1027.
In late February 2013, Dr. Peters provided an addendum, in which she
was asked to “opine as to what portion of [Vail’s] social and occupational
impairment … is attributable to the Veteran’s service connected sleep apnea
and what portion is attributable to the Veteran’s service connected primary
insomnia.” Tr. 1018. Dr. Peters answered that it was “not possible” for her to
answer this question. Tr. 1018.
On January 31, 2013, the VA issued a decision on Vail’s claim for
service-connected compensation. Tr. 220. 	The VA determined that Vail’s
following impairments cause the following percentage-based disability rating:
sleep apnea (50 percent); fibromyalgia (40 percent); and left knee (10 percent),
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 7 of 25. PageID #: <pageID>

8
for a combined rating of 70 percent.5 Tr. 222. On March 25, 2013, the VA added
a primary insomnia impairment (30 percent) for a new combined rating of 80
percent. Tr. 230.
In May 2014, Vail saw Carolyn Welsh, M.D., and underwent a sleep
study at a VA medical center in Colorado. Tr. 996. Vail reported that he had
undergone a rhinoplasty (nose surgery) in August 2013 	and that it had
improved his sleep. Tr. 996. But he remained “intolerant” of CPAP therapy. Tr.
996. Dr. Welsh’s impression of the study was that Vail’s sleep apnea had not
completely resolved, and that Vail’s “AHI,” the amount of times his breathing
slowed or stopped during an hour of sleep, “remain[ed] in the severely elevated
range.” Tr. 996. She suggested that Vail try taking anxiety medication before
using his CPAP machine (Vail had done this in the past) or use an “oral
appliance” if he couldn’t use a CPAP machine. Tr. 996. 	At a follow-up
appointment in October, Vail reporting having trouble falling asleep. Tr. 987.
He said that he was “doing well and feeling better on nights he use[d] the
[CPAP] machine which isn’t every night.” Tr. 989. Dr. Welsh encouraged Vail
to use the machine nightly and try cognitive behavioral therapy for his
reported insomnia. Tr. 989.
5 	The decision explains that the VA “do[es] not add the individual
percentages of each condition to determine [the] combined rating. [It] use[s] a
combined rating table that considers the effect from the most serious to the
least serious conditions.” Tr. 222.
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 8 of 25. PageID #: <pageID>

9
In November 2014, Vail followed up with Dr. Welsh. Tr. 986. The week
before, Vail had seen a psychologist for insomnia. Tr. 986–87. Vail told Dr.
Welsh that he fell asleep quickly but still woke up during the night, which he
attributed to his dislike of the CPAP mask. Tr. 986. Vail said that he would
tear the mask off at night and that desensitization techniques had not helped.
Tr. 986. Dr. Welsh wrote that Vail was resistant to trying deep-relaxation
techniques, and that she wouldn’t see Vail again unless he agreed to “engage
in robust relaxation training.” Tr. 986.
In May 2015, Vail visited a VA primary care clinic in Colorado. Tr. 975.
He said 	that 	his 	insomnia 	was 	well-managed with Trazadone 	and 	his
depression was well-controlled. Tr. 975. In September, Vail returned for a refill
of 	his 	Cymbalta 	prescription to 	treat 	his 	fibromyalgia. 	Tr. 	971. 	Vail’s
fibromyalgia was well-controlled on Cymbalta, he was “doing well,” and he had
no other concerns. Tr. 971.
Evidence during the relevant period
In May 2017, Vail saw nurse practitioner Lisa King at a VA primary
care center in Ohio to establish care. Tr. 965. Vail complained of sleep apnea,
fibromyalgia, and rhinitis (nasal 	inflammation). 	Tr. 965. 	He denied any
musculoskeletal or neurological issues and said that his memory was “good.”
Tr. 965. Vail’s physical exam was unremarkable: a full range of motion in his
arms and legs; steady gait; no joint deformities, swelling, pain, or tenderness;
and no muscle pain. Tr. 966. Vail reported that he no longer took Cymbalta,
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 9 of 25. PageID #: <pageID>

10
Gabapentin, or Lyrica for his fibromyalgia and that his fibromyalgia was
“stable.” Tr. 966. For sleep apnea, Vail was “[n]on-compliant with CPAP.” Tr.
966. He said that he had five prior sleep studies; had his uvula removed (the
soft flap of tissue that hangs down at the back of the mouth), which had not
helped; and declined a further evaluation at this visit. Tr. 966. For insomnia,
Vail said that 	he tried behavioral training for sleep and reported that
Trazadone worked the best. Tr. 966.
In 	May 	2018, 	Vail 	saw 	Amy 	Schechter, M.D. 	for 	a 	fibromyalgia
compensation and pension exam at a VA medical center in Ohio. Tr. 956–57.
Dr. Schechter reviewed Vail’s records and noted that he had been diagnosed
with fibromyalgia in 2011. Tr. 956. She referenced Vail’s past exams when
asked to describe his history. Tr. 956. She listed Vail’s symptoms: “[a]ches and
pains … most severe in the shoulder area, sometimes in the lower back, and
lesser throughout the rest of the body.” Tr. 957. Vail still had “maintenance
insomnia unrelated to the sleep apnea.” Tr. 957. Dr. Schechter checked all of
the boxes indicating Vail’s signs and symptoms: widespread musculoskeletal
pain, stiffness, muscle weakness, sleep disturbances, paresthesias, anxiety,
and “Raynaud’s-like symptoms.”6 Tr. 957. Vail had constant or nearly constant
6 	Raynaud’s syndrome is a disorder that affects the small blood vessels in
fingers and toes, as well as nose, lips, or ear lobes. It causes episodic spasms of
those small blood vessels, called a vasospastic attack, in response to cold
temperatures or stress. These spasms cause the skin to turn white, then blue
and feel cold or numb and, as the blood vessels relax, generally after about 15
minutes, the skin may turn red and feel tingly. See Raynaud’s Syndrome,
Cleveland 	Clinic 	Health 	Library,
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 10 of 25. PageID #: <pageID>

11
symptoms and pain in “all” trigger points bilaterally. Tr. 957. Dr. Schechter
indicated that Vail’s fibromyalgia affected his ability to work and explained:
“The veteran was medically discharged after 28 years in the USAF due to his
fibromyalgia and sleeplessness. It is more likely than not that his sleeplessness
is a part of his fibromyalgia[.]” Tr. 957.
Evidence after the relevant period
At a May 2019 visit with a sleep psychologist at a VA clinic in Ohio, Vail
said he had no difficulty falling asleep but had problems staying asleep. Tr.
2079–80. He estimated that during sleep he woke up three to five times “per
week.” Tr. 2080. He got about six hours of sleep a night, which he “realize[d]
… is within normal limits.” Tr. 2080. On exam, Vail was oriented, walked
independently without an assistive device, had normal speech, a slightly
anxious mood, congruent affect, logical and relevant thought content, fair
insight and judgment, and no delusions or hallucinations. Tr. 2079. Vail
reported that he was “very active.” Tr. 2081. At the time of his visit, he was
busy “cleaning out” his dad’s estate. Tr. 2081. Vail maintained his home and
was “always on the go.” Tr. 2081.
In early 2023, Vail underwent carpal tunnel release surgery on both
wrists. Tr. 734, 752–53.
https://my.clevelandclinic.org/health/diseases/9849-raynauds-phenomenon,
[https://perma.cc/QF6G-VCPT].
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 11 of 25. PageID #: <pageID>

12
A March 2024 MRI of Vail’s cervical spine showed disc desiccation with
mild disc bulging at multiple levels. Tr. 583.
On May 8, 	2024, 	the VA added a 	bilateral restless leg syndrome
impairment (20 percent each leg) for a new combined rating of 100 percent,
effective November 8, 2023. Tr. 234.
Notes from a late May 2024 sleep medicine clinic at a VA clinic in Ohio
state that Vail had moderate sleep apnea. Tr. 575. The doctor encouraged Vail
to diet, exercise, and lose weight. Tr. 575. Vail was thinking about getting a
CPAP machine, which the physician thought was “a good idea.” Tr. 575.
In July 2024, Nurse Practitioner Lisa King wrote a letter for Vail’s
disability application. Tr. 1402. King wrote that Vail had been a patient at VA
medical centers since 2011. Tr. 1402. He had been treated for fibromyalgia,
insomnia, and sleep apnea “that has resulted in chronic fatigue.” Tr. 1402.
King said that Vail “has been unable to maintain employment since 2016 given
these ailments.” Tr. 1402.
At a November 2024 dermatology appointment, Vail had no areas of
concerns with his skin and normal mental status findings. Tr. 1924. Vail said
that he that he enjoyed yard work, and that he had a small farm and spent
most of his days outside. Tr. 1924.
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 12 of 25. PageID #: <pageID>

13
State agency opinions7
In June 2024, in relation to Vail’s Social Security disability application,
Gerald 	Kloyp 	reviewed 	Vail’s 	record 	and 	determined 	that 	there 	was
“insufficient information in file prior to [date last insured] to establish an RFC”
(residual functional capacity).8 Tr. 61. 	In August, Robert Klinger, M.D.,
reviewed Vail’s record and agreed with Kloyp’s finding. Tr. 67.
In June 2024, Katherine Fernandez, Psy.D., reviewed Vail’s record and
determined that there was insufficient evidence to establish a medically
determinable mental impairment before Vail’s date last insured. Tr. 61. In
August 2024, Robyn Murry-Hoffman, Ph.D., reviewed Vail’s record and agreed
with Dr. Murry-Hoffman’s finding. Tr. 67–68.
Hearing testimony
Vail testified during his administrative hearing before the ALJ. The ALJ
summarized Vail’s testimony at the administrative hearing as follows:
7 	When a claimant applies for disability benefits, the State Agency creates
a record. The record includes the claimant’s medical evidence. A State Agency
disability examiner and a State Agency physician or psychologist review the
claimant’s record and determine whether and to what extent the claimant’s
condition affects his or her ability to work. If the State Agency denies the
claimant’s 	application, 	the 	claimant 	can 	ask 	for 	reconsideration. 	On
reconsideration, the State Agency updates the record and a second disability
examiner and doctor review the file and make a new determination. See, e.g.,
20 C.F.R. § 404.1615.
8 	An RFC is an “‘assessment of’” a claimant’s ability to work, taking his or
her “limitations … into account.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235,
239 (6th Cir. 2002) (quoting 20 C.F.R. § 416.945). Essentially, it’s the SSA’s
“description of what the claimant ‘can and cannot do.’” Webb v. Comm’r of Soc.
Sec., 368 F.3d 629, 631 (6th Cir. 2004) (quoting Howard, 276 F.3d at 239).
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 13 of 25. PageID #: <pageID>

14
the claimant testified that he is unable to work due
to his impairments. He testified that he has been
service-connected dating back to 2004. He testified
that he has not worked since July of 2016. 	He
testified to having fibromyalgia since his retirement
from the military, which has resulted in brain fog,
tenderness, and fatigue on a daily basis. He further
testified that he is unable to sit or lie down for long
periods in 	one position. The 	claimant 	indicated
ongoing sleep problems, which his doctors are trying
to figure out, as medication(s) have not helped much.
He reported ongoing knee issues and problems going
down stairs as well. He also testified to having issues
with 	his 	hands 	after 	carpel 	tunnel 	surgery.
Mentally, he indicated ongoing problems despite
medications as well. He reported that his overall
condition also affects his ability to remember and
understand 	things, 	complete tasks, 	concentrate,
follow instructions, and get along with others.
Tr. 20 (citing “Hearing testimony, Exs. 7E, 17E”).
The ALJ discussed with the vocational expert Vail’s past work as a
recreation leader. Tr. 49–50. The ALJ asked the vocational expert to determine
whether a 	hypothetical individual with Vail’s 	age, education, and work
experience could perform Vail’s past work or any other work if the individual
had the limitations assessed in the ALJ’s RFC determination, described below.
Tr. 50–51. The vocational expert answered that such an individual could not
perform Vail’s past work, but could perform the following jobs: routing clerk,
merchandise marker, and mailroom clerk. Tr. 51–52.
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 14 of 25. PageID #: <pageID>

15
The ALJ’s Decision
The ALJ made the following findings of fact and conclusions of law:
1. 	The 	claimant 	last 	met 	the 	insured 	status
requirements of the Social Security Act on December
31, 2018.
2. The claimant did not engage in substantial gainful
activity during the period from his alleged onset date
of April 15, 2012, through his date last insured of
December 31, 2018 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had
the following severe impairments: osteoarthrosis,
osteoarthritis, 	knee; 	fibromyalgia; 	insomnia;
restless 	leg 	syndrome; 	anxiety 	and 	depressive
disorder; and post-traumatic stress disorder (PTSD)
(20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did
not 	have 	an 	impairment 	or 	combination 	of
impairments that 	met or medically equaled the
severity of one of the listed impairments in 20 CFR
Part 	404, 	Subpart 	P, 	Appendix 	1 	(20 	CFR
404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record,
the undersigned finds that, through the date last
insured, the claimant had the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) 	except 	the 	claimant 	cannot 	climb
ladders, ropes, or scaffolds, but can 	occasionally
climb ramps or stairs. He cannot balance as that
term is defined in the Selected Characteristics of
Occupations 	(SCO), 	but 	can 	occasionally stoop,
crouch, 	kneel, 	and 	crawl. 	He 	cannot 	work 	at
unprotected heights 	or 	work 	around 	hazardous
machinery. He is also unable to perform commercial
driving. The claimant can 	operate bilateral foot
controls 	frequently. 	He 	can 	perform 	frequent
reaching 	overhead, bilaterally. 	He 	can 	perform
frequent handling and fingering. The claimant is
also 	unable 	to 	have 	concentrated exposure 	to
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 15 of 25. PageID #: <pageID>

16
extreme 	cold, 	heat, 	humidity, 	wetness, 	and
pulmonary 	irritants. 	He 	can 	also 	have 	no
concentrated exposure to vibration. Mentally, the
claimant can perform simple, routine work, with
only 	occasional 	interaction 	with 	the 	public,
coworkers, and supervisors. He cannot perform fast-
paced production such as assembly line or work
where machine sets the pace; and work is of a
variable 	rate. 	The 	claimant 	can 	perform 	only
occasional 	decision-making 	and 	experience only
occasional changes in the work setting. He is also
unable to perform tandem routine job tasks with
coworkers.
6. The claimant has no past relevant work (20 CFR
404.1565).
7. The claimant was … 52 years old, which is defined
as an individual closely approaching advanced age,
on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education
(20 CFR 404.1564).
9. Transferability of job skills is not an issue because
the claimant does not have past relevant work (20
CFR 404.1568).
10. Through the date last insured, considering the
claimant’s 	age, 	education, work experience, and
residual functional capacity, there were jobs that
existed 	in 	significant 	numbers 	in 	the 	national
economy that the claimant could have performed (20
CFR 404.1569 and 404.1569a).
11. The claimant was not under a disability, as
defined in the Social Security Act, at any time from
April 15, 	2012, 	the alleged onset date, through
December 31, 2018, the date last insured (20 CFR
404.1520(g)).
Tr. 17–23.
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 16 of 25. PageID #: <pageID>

17
Standard for Disability
Eligibility for social security benefit payments depends on the existence
of a disability. 42 U.S.C. §§ 423(a), 1382(a). 	“Disability” is defined as the
“inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected
to 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)(A); see also 42 U.S.C.
§ 1382c(a)(3)(A).
An ALJ is required to follow a five-step sequential analysis to make a
disability determination:
1. 	Is the claimant engaged in substantial gainful
activity? If so, the claimant is not disabled.
2. 	Does 	the 	claimant 	have 	a 	medically
determinable impairment, or a combination of
impairments, that 	is “severe”? If 	not, 	the
claimant is not disabled.
3. 	Does the claimant’s impairment meet or equal
one of the listed impairments and meet the
duration requirement? If so, the claimant is
disabled. If not, the ALJ proceeds to the next
step.
4. 	What is the claimant’s residual functional
capacity and can the claimant perform past
relevant work? If 	so, the claimant 	is 	not
disabled. If not, the ALJ proceeds to the next
step.
5. 	Can 	the 	claimant 	do 	any 	other 	work
considering the claimant’s residual functional
capacity, 	age, 	education, 	and 	work
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 17 of 25. PageID #: <pageID>

18
experience? If so, the claimant is not disabled.
If not, the claimant is disabled.
20 C.F.R. §§ 404.1520, 416.920. see Jordan v. Comm’r of Soc. Sec., 548 F.3d
417, 422 (6th Cir. 2008). Under this sequential analysis, the claimant has the
burden of proof at steps one through four. Jordan, 548 F.3d at 423. The burden
shifts to the Commissioner at step five “to prove the availability of jobs in the
national economy that 	the claimant is capable of performing.” Id. “The
claimant, however, retains the burden of proving her lack of residual functional
capacity.” Id. If a claimant satisfies each element of the analysis and meets the
duration requirements, the claimant is determined to be disabled. Walters
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
Standard of review
A reviewing court must affirm the Commissioner’s conclusions unless it
determines “that the ALJ has failed to apply the correct legal standards or has
made findings of fact unsupported by substantial evidence in the record.”
Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence’ is a ‘term of art’” under which
“a court … asks whether” the “existing administrative record … contains
‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek
v. Berryhill, 587 U.S. 	97, 102 (2019) 	(citations omitted). The substantial
evidence standard “is not high.” Id. at 103. Substantial evidence “is ‘more than
a mere scintilla’” but it “means only[] ‘such relevant evidence as a reasonable
mind might 	accept as 	adequate 	to support a 	conclusion.’” Id. 	(citations
omitted). The Commissioner’s “findings … as to any fact if supported by
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 18 of 25. PageID #: <pageID>

19
substantial evidence [are] conclusive.” 42 U.S.C. § 405(g); Biestek, 587 U.S. at
99.
A court may “not try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.
2007). 	Even if substantial 	evidence or a preponderance of the evidence
supports a 	claimant’s 	position, a 	reviewing court 	cannot 	overturn 	the
Commissioner’s decision “so long as substantial evidence also supports the
conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
477 (6th Cir. 2003). This is so because there is a “zone of choice within which”
the Commissioner can act, without fear of judicial “interference.” Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (quoting Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)).
Discussion
Vail argues that the ALJ erred when she failed to evaluate his treatment
history: the records supporting the VA’s disability assessment and the VA
compensation and pension opinions in the record. Doc. 8, at 9–10. The
Commissioner argues that the relevant period in this case is from 2016 to 2018,
and 	that 	most 	of the records pre-date this period. Doc. 	10, 	at 	6. 	The
Commissioner also asserts that none of the compensation and pension exams
cited by Vail constitute a “medical opinion” that the ALJ was required to
evaluate. Id. at 5.
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 19 of 25. PageID #: <pageID>

20
The ALJ considered Vail’s VA disability rating as follows:
The disability ratings are not persuasive, as the VA
uses different criteria to assess disability. (Ex. 1E).
Nonetheless, they were considered in this decision.
However, there is no indication during the relevant
period to warrant a sedentary residual functional
capacity 	or a 	more 	limiting 	residual functional
capacity than found in this decision.
Tr. 22. This was not error, as the ALJ was not required to evaluate the VA’s
disability rating. See 20 C.F.R. § 404.1504 (“[the Agency] will not provide any
analysis in our determination or decision about a decision made by any other
governmental agency [such as the Department of Veterans Affairs] about
whether you are disabled, blind, employable, or entitled to any benefits”).
“However, [the Agency] will consider all of the supporting evidence underlying
the other governmental agency … decision that [it] receive[s] as evidence in [a]
claim.” Id. So the ALJ was required to consider “all of the supporting evidence
underlying” the VA’s disability rating.
In her decision, the ALJ summarized Vail’s medical evidence beginning
in 2016. 	Tr. 21. 	But Vail’s VA records go back to 2011, 	and the VA’s
compensation and pension exams that served as the basis for Vail’s disability
rating occurred in 2012, 2013, and 2018. The ALJ didn’t discuss any evidence
before 2016 and she didn’t discuss Vail’s 2018 compensation and pension exam,
which occurred during the relevant period. It is true that an ALJ “need not
discuss every piece of evidence in the record for [her] decision to stand,”
Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004), and that
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 20 of 25. PageID #: <pageID>

21
a duty to “consider” the evidence is different than a duty to “discuss” the
evidence, Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir.
2006). It is also true, as the Commissioner says, that the relevant disability
period in 	Vail’s 	case 	runs 	from 	2016 	to 	2018. 	Doc. 	10, 	at 	6. 	But 	the
Commissioner hasn’t cited legal authority that an ALJ is not required to
consider evidence outside the relevant period—and the ALJ discussed evidence
that post-dated the relevant period by six years. Tr. 22 (discussing 2024
treatment notes). So the ALJ’s failure to discuss any records pre-dating the
2016 alleged onset date, and any compensation and pension exams which
supported the VA’s disability rating, is striking.
Regarding these compensation and pension exams, Vail argues that
they contained “medical opinions” that the ALJ was required to evaluate. Doc.
8, at 10–11, 	14–15. The Commissioner asserts that the compensation and
pension exams did not contain medical opinions, so the ALJ wasn’t required to
evaluate them. Doc. 10, at 7.
The regulations define a “medical opinion” as “a statement from a
medical 	source 	about 	what 	[claimants] 	can 	still 	do 	despite 	[their]
impairment(s) and 	whether [they] have 	one or more impairment-related
limitations or restrictions” in their ability to perform the physical, mental, or
other demands of work. 20 C.F.R. § 404.1513(a)(2). Most of the compensation
and pension exams did not contain medical opinions. For instance, Vail cites
his 2013 compensation and pension exam form in which Dr. Smits was asked
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 21 of 25. PageID #: <pageID>

22
to describe how Vail’s fibromyalgia “impact[s] his ability to work.”9 Tr. 1037.
Dr. Smits reiterated what Vail told him: that when performing past work Vail
“lost approximately 1–2 days of work time every week due to fatigue”; he had
difficulty performing his military work due to fatigue and muscle pain; and he
felt less stressed since he stopped working, which has helped his fibromyalgia.
Tr. 1037. Because they don’t describe functional limitations that Dr. Smits
believed Vail would have, these statements are not medical opinions. See 20
C.F.R. § 404.1513(a)(2); see Francis v. Comm’r Soc. Sec. Admin., 414 F. App’x
802, 804 (6th Cir. 2011) (finding that a doctor’s statement wasn’t a “‘medical
opinion’ at all—it merely regurgitates Francis’s self-described symptoms”);
Harden v. Comm’r of Soc. Sec., No. 16-12394, 2017 WL 4946580, at *8 (E.D.
Mich. Aug. 24, 2017) 	(“The medical source statement’s mere parroting of
plaintiff’s reported symptoms and complaints (as dictated by plaintiff the very
day the statement was completed) oppugns its status as an actual medical
opinion under the regulatory definition”).
Vail also cites Dr. Schechter’s 2018 compensation and pension exam
report, Doc. 8, at 17–18, but all Dr. Schechter’s report contains is a summary
of Vail’s medical records and a statement that fibromyalgia affected Vail’s
work, Tr. 957. When Dr. Schechter was asked to describe how fibromyalgia
affected Vail’s work, she only wrote that Vail was medically discharged due to
9 	Dr. Smits’s compensation and pension exam record, which spans 35
pages, is a questionnaire which includes check-the-box questions-and-answers
and some imbedded narrative portions. Tr. 1029–64.
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 22 of 25. PageID #: <pageID>

23
his fibromyalgia. Tr. 957. This is not a medical opinion. See 20 C.F.R. §
404.1513(a)(2).
Vail complains that the ALJ didn’t evaluate the opinion of Nurse King,
who in a July 2024 letter stated that Vail’s fibromyalgia, insomnia, and sleep
apnea cause chronic fatigue and that, as a result, Vail “has been unable to
maintain employment since 2016.” Doc. 8, at 16; Tr. 1402. But this doesn’t
describe any functional limitations, either. See 20 C.F.R. § 404.1513(a)(2). And
to the extent King opines that Vail is unable to work, the ALJ is not required
to evaluate such a statement because whether Vail is disabled or unable to
work 	is 	an 	issue 	reserved 	to 	the 	Commissioner. 	See 	20 	C.F.R. 	§
404.1520b(c)(3)(i)–(viii) (listing the type of evidence that is “inherently neither
valuable nor persuasive” such that the ALJ need not evaluate it, including
whether a claimant is disabled, can perform work, or has a severe impairment).
Nevertheless, Vail has identified an opinion in the compensation and
pension exam reports. In 2013, Dr. Peters indicated that Vail would have the
following “occupational and social impairment”: “occasional decrease in work
efficiency and intermittent periods of inability to perform occupational tasks,
although generally functioning satisfactorily, with normal routine behavior,
self-care and conversation.” Tr. 1026. This describes functional limitations and
meets the basic threshold of an opinion.10 As such, the ALJ was required to
10 	The Commissioner does not argue that the ALJ’s failure to evaluate Dr.
Peters’s (or any other provider’s) opinion is harmless error. So I haven’t
addressed this possibility. Other courts have disagreed as to whether the exact
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 23 of 25. PageID #: <pageID>

24
evaluate it, or explain why she found it insufficient and not worthy of
evaluation. See 20 	C.F.R. 	§ 404.1520c(b) 	(stating that 	the Agency “will
articulate … how persuasive we find all of the medical opinions … in your case
record.”) (emphasis added); see also Deamer v. Comm’r of Soc. Sec. Admin., No.
1:23-cv-2212, 2024 WL 2390286, at *11 (N.D. Ohio May 23, 2024) (under the
updated regulations, an ALJ must articulate the persuasiveness of each
medical opinion) (citing 20 C.F.R. § 404.1520c(b)) and Hardy v. Comm’r of Soc.
Sec., 554 F. Supp. 3d 900, 905 (E.D. Mich. 2021)). The ALJ’s failure to evaluate
Dr. Peters’s opinion runs afoul of the regulations and therefore constitutes
reversible error.
Vail also argues that the ALJ’s evaluation of his subjective reports of
symptoms was faulty. Doc. 8, at 25. He points out that the ALJ found that
Vail’s “statements regarding daily activities” were inconsistent with the
medical evidence without ever citing any of Vail’s daily activities. Doc. 8, at 25
(citing Tr. 22). This is true—nowhere in the decision does the ALJ describe any
of Vail’s daily activities. The Commissioner offers his view of Vail’s inconsistent
activities, Doc. 10, at 9, but this post-hoc rationale is insufficient to support the
ALJ’s decision. See Hicks v. Comm’r of Soc. Sec., 909 F.3d 786, 808 (6th Cir.
language in Dr. Peters’s report amounts to an opinion that the ALJ should
have evaluated. Compare, e.g., Shane H. v. Kijakazi, No. 2:22-cv-593, 2023 WL
5724942, at *4 (D. Utah Sept. 1, 2023) (the same language found in Dr. Peters’s
report was not an opinion requiring evaluation), with Hammad v. Kijakazi, No.
4:20-cv-568, 2021 WL 3190808, at *9–10 (M.D. Pa. July 27, 2021) (the same
language in Dr. Peters’s report was an opinion requiring evaluation). Neither
party cites these or other similar cases.
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 24 of 25. PageID #: <pageID>

25
2018) (“[A]n agency’s actions must be upheld, if at all, on the basis articulated
by 	the 	agency 	itself, 	and 	not 	based 	on 	appellate 	counsel’s 	post 	hoc
rationalization[s]”) (internal quotation marks 	and 	citations omitted). On
remand, the ALJ will have an opportunity to re-evaluate Vail’s allegations of
symptoms, as well as all of the evidence of record.
Conclusion
For the reasons explained above, I recommend that the Court vacate and
remand the Commissioner’s decision.
Dated: December 29, 2025
/s/ James E. Grimes Jr.
James E. Grimes Jr.
U.S. Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with
the Clerk of Court within 14 days after the party objecting has been served
with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure
to file objections within the specified time may forfeit the right to appeal the
District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th
Cir. 2019).
Case: 1:25-cv-01203-PAG Doc #: 12 Filed: 12/29/25 25 of 25. PageID #: <pageID>