Case Name in Social Security Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ASHLEY W. o/b/o
GEORGE W., Deceased1 ,
Plaintiff,
Civil Action 1:24−cv−578
v. 	Magistrate Judge Elizabeth P. Deavers
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff, Ashley W. o.b.o. George W., Deceased, brings this action under 42 U.S.C. §
405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”)
denying his application for social security disability insurance benefits (“DIB”). This matter is
before the Court on Plaintiff’s Statement of Errors (ECF No. 13), the Commissioner’s
Memorandum in Opposition (ECF No. 14), Plaintiff’s Reply (ECF No. 16), and the administrative
record (ECF No. 7). For the reasons that follow, the Court OVERRULES Plaintiff’s Statement of
Errors (ECF No. 13) and AFFIRMS the Commissioner’s decision.
I. 	BACKGROUND
Plaintiff protectively filed his applications for DIB and supplemental security income
(“SSI”) on August 13, 2019, alleging that he has been disabled since May 16, 2019, due to Type
2 insulin dependent diabetes, Bipolar Disorder, anxiety, major depressive disorder, ADHD
1 Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any
opinion, order, judgment or other disposition in social security cases in the Southern District of Ohio shall
refer to plaintiffs only by their first names and last initials.
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combined type, heart disease/blockages, bleeding in center and outer eye, eye stroke, neuropathy,
arteric ischemic optic neuropathy, difficulty concentrating, hyperlipidemia, heart disease, chronic
back pain, and blackouts. (R. at 427−38, 482, 515.) Plaintiff’s applications were denied initially
in January 2020 and upon reconsideration in June 2020. (Id. at 173−81, 193−202.) Plaintiff
sought a de novo hearing before an administrative law judge (“ALJ”). (Id. at 281−82.) ALJ
Renita K. Bivins held a telephone hearing on December 22, 2020, at which Plaintiff, who was
represented by counsel, appeared and testified. (R. at 108−44.) A vocational expert (“VE”) did
not have an opportunity to testify. Plaintiff passed away on May 12, 2021. (R. at 2222.)
Plaintiff’s daughter, Ashley, W., entered a notice of substitution of party. (R. at 315-19.) The
ALJ held a supplemental hearing on May 25, 2021, where the VE, appeared and testified. (R. at
79-107.) On August 25, 2021, the ALJ issued a decision finding that Plaintiff was not disabled
within the meaning of the Social Security Act. (R. at 215−43.) The Appeals Council granted
Plaintiff’s request for review for the DIB application only and remanded the matter for further
proceedings. (R. at 244−50.) 2
The Appeals Council remanded and vacated the ALJ’s August 2021 decision, in part
because the ALJ’s decision did not contain an adequate function-by-function assessment of the
Plaintiff’s ability to do work-related mental activities, noting although the RFC limited Plaintiff
to interacting with the general public on a superficial basis, it did not contain an assessment
regarding the Plaintiff’s ability to interact with supervisors and co-workers. (R. at 247.) The
Appeals Council indicated that, upon remand, the ALJ would “[g]ive further consideration to the
2 The Appeals Council denied Plaintiff’s request to review of the ALJ’s August 25, 2021 decision
dismissing Plaintiff’s SSI application. (R. at 253-56). This issue is not contested in the current case.
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claimant’s maximum [RFC] and provide appropriate rationale with specific references to
evidence of record in support of the assessed limitations. . . .” (R. at 248.)
On remand, the claim was assigned to the same ALJ who held a telephone hearing on
February 23, 2023. (R. at 51−78.) ALJ Bivins held another hearing and issued another
unfavorable decision denying benefits on May 18, 2023. (R. at 18-41.) After conducting a
review of the evidence regarding Plaintiff’s mental health impairments, the ALJ found that
Plaintiff had no severe mental impairments and no mental RFC limitations. (R. at 18-41.) The
Appeals Council denied Plaintiff’s request for review of the ALJ’s decision in August 2024 and
determined that the ALJ had not abused her discretion in changing her view as to Plaintiff’s
mental impairments and associated limitations. (R. at 1-6.) The ALJ’s May 2023 decision,
therefore, became the Commissioner’s final decision for purposes of judicial review under 42
U.S.C. § 405(g).
II. 	RELEVANT RECORD EVIDENCE
The Court has thoroughly reviewed the transcript in this matter, including Plaintiff’s
medical records, function and disability reports, and hearing testimony as to Plaintiff’s
conditions and resulting limitations. Given the claimed errors raised by Plaintiff, rather than
summarizing that information here, the Court will refer and cite to it as necessary in the
discussion of the parties’ arguments below.
III. 	ADMINISTRATIVE DECISION
On May 18, 2023, the ALJ issued her decision. (R. at 15−50.) The ALJ found that
Plaintiff met the insured status requirements of the Social Security Act through June 30, 2024.
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(R. at 22.) Then, at step one of the sequential evaluation process,3 the ALJ found that Plaintiff
had not engaged in substantial gainful activity since May 16, 2019, the alleged onset date. (Id.)
At step two, the ALJ found that Plaintiff had the following severe impairments: chronic ischemic
heart disease; diabetes mellitus (DM); hypoglycemia; peripheral neuropathy; retinal disorder;
low vision; labyrinthitis. (Id.) At step three, the ALJ further found that Plaintiff does not have
an impairment or combination of impairments that meets or medically equals the severity of one
of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 25.)
Before proceeding to Step Four, the ALJ set forth Plaintiff’s residual functional capacity
(“RFC”) as follows:
[Plaintiff] has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) with the following
limitations: he could lift and carry up to 10 pounds occasionally and
10 pounds frequently. He could stand and/or walk 2 hours per 8-
hour day and sit 6 hours per 8-hour day with normal breaks. He
could never climb ladders, ropes, or scaffolds. He must avoid all
exposure to unprotected heights of ladders, ropes, or scaffolds,
dangerous machinery or commercial driving. He requires to limited
use of a cane to go to and from the workstation while carrying
3 Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at
any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully
considered, the sequential review considers and answers five questions:
1. 	Is the claimant engaged in substantial gainful activity?
2. 	Does the claimant suffer from one or more severe impairments?
3. 	Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
4. 	Considering the claimant’s residual functional capacity, can the claimant
perform his or her past relevant work?
5. 	Considering the claimant’s age, education, past work experience, and residual functional
capacity, can the claimant perform other work available in the national economy?
See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
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objects in the freehand. He had no left visual acuity but retained
sufficient right visual acuity to handle large objects and avoid
ordinary hazards in the workplace such as boxes on the floor, doors
ajar, or approaching people or vehicles. He could perform work not
requiring fine visual acuity like tying thread or threading a needle.
He was limited to frequent near visual acuity.
(R. at 26.)
At step four of the sequential process, relying on the VE’s testimony, the ALJ determined
that Plaintiff was capable of his performing past relevant work as a telephone solicitor, as the
work does not require the performance of work-related activities precluded by his RFC. (R. at
40.) The ALJ therefore concluded that Plaintiff has not been under a disability, as defined in the
Social Security Act, since May 16, 2019. (R. at 41.)
IV. 	STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “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, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
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Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the substantial evidence
standard, “‘a decision of the Commissioner will not be upheld where the SSA fails to follow its
own regulations and where that error prejudices the claimant on the merits or deprives the
claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
V. 	ANALYSIS
Plaintiff raises three issues in his brief, all related to the ALJ’s findings in her May 2023
post-remand decision that Plaintiff had no severe mental impairment and no mental RFC
limitations as opposed to her August 2021 pre-remand decision to the contrary. Plaintiff
contends that “the ALJ’s actions on remand in retracting or deleting both her previous step 2
determination and her concomitant mental residual functional capacity determination constitute a
clear abuse of discretion and are not in any case supported by substantial evidence.” (ECF No.
13 at PageID 2759−78.) Plaintiff also contends that the ALJ erred by substituting her own non-
medical opinions for those of the three examining and/or reviewing psychologists, Drs. Wagner,
Tishler, and Williams. (Id. at PageID 2779-80.) Plaintiff’s third assignment of error likewise
has to do with the ALJ’s retraction of her prior findings. According to Plaintiff, the ALJ’s
actions violate res judicata principles under Drummond or AR 98-1(6) or under Earley or AR
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24-1(6) given that the only thing that had changed from the first two hearings to the third was
that Plaintiff had passed away. (Id. at PageID 2780-85.)
The Commissioner counters that the ALJ was squarely within her authority, after the
Appeals Council remanded the case and specifically vacated her decision, to reconsider the
evidence regarding the mental health impairments and reach different findings if the record so
warranted. (ECF No. 14 at PageID 2790-99.)
A. 	The ALJ’s Retraction of her previous Step 2 determination
Plaintiff contends that the ALJ erred at Step Two of the sequential evaluation by changing
her findings regarding the mental impairments to avoid finding Plaintiff disabled at steps four and
five of the sequential evaluation process. (ECF No. 13 at PageID 2759-78.)
In her August 2021 decision, at step 2, the ALJ determined that Plaintiff had the following
severe impairments: ischemic heart disease; diabetes mellitus with peripheral neuropathy; low
vision related to non-arteritic anterior ischemic optic neuropathy of the left eye; bilateral
retinopathy and cataracts, with macular edema and vitreous hemorrhage of the right eye;
degenerative disc disease; episodes of dizziness of unclear etiology; a depressive disorder; an
anxiety disorder; and attention deficit and hyperactivity disorder (ADHD). 	(R. at 221.) 	In her
May 2023 decision, the ALJ determined that Plaintiff had the following severe impairments:
chronic ischemic heart disease; diabetes mellitus; hypoglycemia; peripheral neuropathy; retinal
disorder; low vision; and labyrinthitis. 	(R. at 22.) 	The ALJ found that Plaintiff’s depressive
disorder, anxiety disorder, and attention deficit and hyperactivity disorder were “non-severe.” (R.
at 22-24.) 	The decision does not mention degenerative disc disease as either a severe or “non-
severe” impairment.
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Plaintiff contends the ALJ abused her discretion in finding no severe mental impairments
and no mental RFC limitations in her May 2023 decision. 	To be clear, as Plaintiff points out,
nothing in record had changed except that the claimant had passed away. It would seem logical
that the ALJ would arrive at the same conclusions. But, contrary to what Plaintiff contends, the
Appeals Council did not direct the ALJ to come to any particular conclusions. Although it found
the ALJ’s RFC did not contain an assessment regarding the claimant’s ability to interact with
supervisors and co-worker, it directed the ALJ upon remand to “[g]ive further consideration to the
claimant’s maximum residual functional capacity and provide appropriate rationale with respect
to references to the evidence of record in support of the assessed limitations.” (R. at 248.)4
As noted, Plaintiff’s Statement of Errors rests chiefly on one narrow issue about the RFC
the ALJ adopted in the 2023 decision. Plaintiff argues that the ALJ’s assessment of his RFC in
the 2023 decision is not supported by substantial evidence because ALJ Bevin’s assessed a
different RFC in her 2021 decision and did not explain why she made that change.
In response, the Commissioner argues that because the Appeals Council vacated the 2021
decision and remanded the matter to the ALJ without limiting the ALJ’s authority to make
different findings on remand,5 ALJ Bevins was not bound by his earlier findings and was under
no obligation to explain any differences in the two decisions. (Def’s Br. at 5-8.) The
Commissioner further argues that, regardless of the 2021 decision, the ALJ’s latter RFC
assessment finds support in the record. The Court agrees.
4 Notably, the Appeals Counsel did not remand the case essentially instructing the ALJ to
reconsider her finding regarding Plaintiff’s mental health impairments, as the Commissioner
suggests. (Def’s Opp. at p.5.)
5 The Notice of Order of Appeals Council Remanding Case to Administrative Law Judge
specifically states that, “[i]n addition to what we ordered the Administrative Law Judge to do,
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The ALJ did not abuse her discretion in finding no severe mental impairments and no
mental RFC limitations in her May 2023 decision. 	Even though the same ALJ issued both
decisions, she was not bound by her prior findings because the Appeals Council specifically
“vacate[d]” her earlier decision dated August 2021 under the authority of 20 C.F.R. § 404.977. (R.
at 246). Because the Appeals Council vacated the prior decision, the ALJ was not bound by her
findings in the August 2021 decision and did not err in reconsidering the evidence and reaching
new findings in her May 2023 decision.
“[W]hen Plaintiff’s request for remand was granted, the previous ALJ’s decision was
vacated, and the current ALJ was left to reconsider Plaintiff’s claims, de novo, for the entire
adjudicated period. Terrago v. Comm’r of Soc. Sec. Admin., 2014 WL 2442233, at *3 (N.D. Ohio
May 30, 2014). 	Plaintiff asserts that Terrago is inapposite because in that case a prior ALJ’s
decision had been vacated, and the case was then assigned to a different ALJ. (Pl.’s Reply, at p.
5.) But under the applicable case law, that is a distinction without a difference.
As our sister Court has explained in detail, upon remand, an ALJ is not required to give
credence to and/or explicitly analyze his or her findings in an earlier decision. 	In Prevost v.
Commissioner of Social Security, a case involving a remand to the same ALJ, the Court found as
follows:
the Administrative Law Judge may also do anything else needed to complete the claim.” (R. at
244.)
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The Appeals Council’s February 2019 remand order effectively nullified ALJ
Blatnik’s 2018 decision. See Social Security Administration, Hearing, Appeals, and
Litigation 	Law 	Manual 	(“HALLEX”) 	I-3-7-1
(https://www.ssa.gov/OP_Home/hallex/I-03/I-3-7-1.html) 	(“In 	most 	cases, 	the
[Appeals Council] will vacate an ALJ’s decision in its entirety when it remands a
case. This action requires that an ALJ issue a new decision in the case.”) (last
accessed March 31, 2021). Given that the prior decision is typically vacated “in its
entirety,” it makes sense that the HALLEX does not direct the ALJ to explain any
differences between his original decision and the one issued after remand.
Moreover, because the ALJ’s 2018 decision was vacated, it never became final, and
it did not bind the ALJ to any extent in 2019. Cf. 20 C.F.R. § 404.955(a) (ALJ’s
decision is “binding on all parties to the hearing unless ... [y]ou or another party
request a review of the decision by the Appeals Council within the stated time
period, and the Appeals Council reviews your case”) (emphasis added).
Prevost v. Comm’r of Soc. Security, Case No. 20-cv-11961, 2021 WL 2349348, at *4–5 (E.D.
Mich.), report and recommendation adopted, 2021 WL 1940487 (E.D. Mich 2021).
Wireman v. Comm’r of Soc. Sec., 60 F. App’x 570 (6th Cir. 2003), is directly on point.
Like this one, Wireman involved a single claim for benefits that was remanded, and the claimant
there also argued that the “most recent ALJ decision regarding his [RFC] [was] erroneous as it
[did] not adopt the findings of a previous ALJ decision.” Id. at 571. The Sixth Circuit rejected this
argument because the prior ALJ decision “never became final as [it was] vacated pursuant to [a]
remand[ ] for further proceedings.” Id. Because the only final decision in that record was the latest
ALJ decision currently before the court, the Sixth Circuit found that the ALJ was not bound by
any of the vacated findings in the prior ALJ decision. Id. 	The facts and issue in this case are
substantially similar with Wireman because, here, the ALJs 2023 decision is also the only final
decision before the Court.
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For these reasons, the Court concludes that nothing prevented ALJ Bivens from assessing
a different RFC in 2023 than she did in 2021. The ALJ did not abuse her discretion.6 Plaintiff’s
Statement of Errors is OVERRULED in this regard.
B. The ALJ’s Compliance with Drummond and Earley
Plaintiff argues that res judicata principles would, absent new and changed
circumstances, preclude or bar the ALJ from changing either her prior mental severe
impairments determination or her concomitant mental RFC determination. (EFC No. 13 at
PageID 2783.) “Stated differently, Plaintiff submits that Judge Bivins was under the Drummond
A.R. 98-4(6), which was then in effect at the time that Judge Bivins issued her remand decision
in 2023, legally required to accept based on res judicata principles her earlier determinations on
the severe impairment and mental RFC issues.” (Id.) In response, the Commissioner maintains
that the ALJ was not legally barred from revisiting the findings in her August 2021 pre-remand
decision in her May 2023 post-remand decision because the ALJ’s August 2021 decision was not
a final decision on a prior disability claim and concerned the same disability application or claim
as her August 2021 decision. (ECF No. 14 at PageID 2797-99.)
In this Circuit, the principles of res judicata apply to both disability applicants and the
Commissioner in Social Security cases. Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 841
(6th Cir. 1997). 	Specifically, the Drummond Court found that, absent evidence of “changed
circumstances” relating to an applicant’s condition, “a subsequent ALJ is bound by the findings of
6 The Appeals Council also considered Plaintiff’s argument that the ALJ arbitrarily and
capriciously changed her view as to the extent of Plaintiff’s mental impairments and associated
limitations to avoid having to find Plaintiff disabled. After reviewing the entire record, including
the hearing recording, the Appeals Council determined that the ALJ did not abuse her discretion.
(R. at 1.)
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a previous ALJ.” 	Id. at 842. In response to Drummond, the Social Security Administration
subsequently issued Acquiescence Ruling (“AR”) 98-4(6), which provides:
When adjudicating a subsequent disability claim with an adjudicated period under
the same title of the Act as the prior claim, adjudicators must adopt such a finding
from the final decision by an ALJ or the Appeals Council on the prior claim . . .
unless there is new and material evidence relating to such a finding or there has
been a change in the law, regulations or ruling affecting the finding or the method
for arriving at the finding.
AR 98-4(6), 1998 WL 283902, at *3 (Soc. Sec. Admin. June 1, 1998).
Thereafter, the Sixth Circuit clarified the scope of Drummond in Earley v. Comm’r of Soc.
Sec., 893 F.3d 929 (6th Cir. 2018). In Earley, the Sixth Circuit explained that res judicata only
applies if an applicant files a subsequent application for the same period of disability that was
rejected in the prior decision. Id. at 933. The Sixth Circuit pointed out that Drummond was never
intended to extend res judicata to foreclose review of a new application for a new period of time,
reasoning that “[a]ny earlier proceeding that found or rejected the onset of disability could rarely,
if ever, have ‘actually litigated and resolved’ whether a person was disabled at some later date.”
Id. Rather, in cases where disability is alleged for a distinct period of time, the application is
entitled to a “fresh look.” Id. This, of course, is not to say that a subsequent ALJ cannot consider
a prior ALJ’s decision. After all, in the absence of new and additional evidence, the subsequent
ALJ may treat the prior ALJ’s findings as “legitimate, albeit not binding, consideration in
reviewing a second application.” Id.
Nonetheless, in order to effectuate the intent of Earley, a meaningful “fresh look” must
provide an applicant with an “opportunity for a full hearing, with no presumptions applied, when
the claim covers a new period of time not addressed in the prior hearing.” Ferrell v. Berryhill, No.
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1:16-CV-00050, 2019 WL 2077501, at *5 (E.D. Tenn. May 10, 2019); see also, Maynard v.
Comm’r of Soc. Sec., No. 2:18-CV-959, 2019 WL 3334327, at *6 (S.D. Ohio July 25, 2019)
(Jolson, M.J.), report and recommendation adopted, No. 2:18-CV-959, 2019 WL 3891859 (S.D.
Ohio Aug. 16, 2019) (Smith, D.J.). Otherwise, an applicant whose claim is heard before an ALJ
applying the presumption set forth in AR 98-4(6) faces “an unwarranted procedural burden… at
the second hearing.” Id. In short, when evaluating a subsequent application for benefits for a
distinct period of time, an ALJ may consider a previous ALJ’s RFC assessment but errs “when he
considers the previous RFC a mandatory starting point for the analysis.” Gale v. Comm’r of Soc.
Sec., No. 1:18-CV-859, 2019 WL 8016516, at *5 (W.D. Mich. Apr. 17, 2019), report and
recommendation adopted, No. 1:18-CV-859, 2020 WL 871201 (W.D. Mich. Feb. 21, 2020).
For the reasons stated above, Plaintiff’s reliance on Drummond and Earley are misplaced.
In Drummond, the Sixth Circuit held that the RFC findings of an ALJ in a final decision concerning
a prior claim are binding on the ALJ considering a subsequent claim, absent evidence of
improvement in the claimant’s condition. Id. at 842. But, Drummond’s holding does not apply
here because the ALJ’s 2021 decision did not involve a prior claim, nor did it ever become final;
rather, the Appeals Council vacated it. See Wireman, 60 F. App’x at 571 (distinguishing
Drummond on these bases). This aspect of Plaintiff’s Statement of Errors is also OVERRULED.
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C. The ALJ’s RFC Determination
The relevant inquiry is not, as Plaintiff contends, whether the ALJ adequately
justified the changes in her findings. Indeed, Plaintiff has cited no authority in support of
that proposition. 	Rather, the only relevant inquiry is whether the ALJ’s findings in the
May 2023 decision are adequately explained and supported by substantial evidence. The
Court concludes that they are.
As a preliminary matter, a claimant’s RFC is an assessment of “the most [a claimant] can
still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). An ALJ must assess a claimant’s
RFC based on all
the relevant evidence in a claimant’s case file. Id. The governing regulations describe
five different categories of evidence: (1) objective medical evidence, (2) medical opinions, (3)
other medical evidence, (4) evidence from nonmedical sources, and (5) prior administrative
medical findings. 20 C.F.R. § 404.1513(a)(1)–(5). Objective medical evidence is defined as
“medical signs, laboratory findings, or both.” 20 C.F.R. § 404.1513(a)(1). “Other medical
evidence is evidence from a medical source that is not objective medical evidence or a medical
opinion, including judgments about the nature and severity of your impairments, your medical
history, clinical findings, diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R.
§ 404.1513(a)(3). “Evidence from nonmedical sources is any information or statement(s) from a
nonmedical source (including you) about any issue in your claim.” 20 C.F.R. § 404.1513(a)(4).
“Medical opinion” is defined as follows:
(2) Medical opinion. A medical opinion is a statement from a medical source about
what you can still do despite your impairment(s) and whether you have one or more
impairment-related limitations or restrictions. . . .
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(A) Your ability to perform physical demands of work activities, such as sitting,
standing, walking, lifting, carrying, pushing, pulling, or other physical functions
(including manipulative or postural functions, such as reaching, handling, stooping,
or crouching);
(B) 	Your 	ability 	to 	perform 	mental 	demands 	of 	work 	activities, 	such 	as
understanding; remembering; maintaining concentration, persistence, or pace;
carrying out instructions; or responding appropriately to supervision, co-workers,
or work pressures in a work setting;
(C) Your ability to perform other demands of work, such as seeing, hearing, or
using other senses; and
(D) Your ability to adapt to environmental conditions, such as temperature
extremes or fumes. . . . 20 C.F.R. § 404.1513(a)(2).
The governing regulations include a section entitled “[h]ow we consider and articulate
medical opinions and prior administrative medical findings for claims filed on or after March 27,
2017.” 20 C.F.R. §404.1520c. These regulations provide that an ALJ “will not defer or give any
specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from your medical sources.” 20 C.F.R. §
404.1520c(a). Instead, they provide that an ALJ will consider medical source opinions and prior
administrative findings using five factors: supportability, consistency, relationship of source to
claimant, specialization, and other factors tending to support or contradict a medical opinion or
prior administrative medical finding. 20 C.F.R. § 404.1520c(c)(1)–(5).
The regulations explicitly indicate that the “most important factors” to consider are
supportability and consistency. 20 C.F.R. § 404.1520c(b)(2). Indeed, the regulations require an
ALJ to “explain how [they] considered the supportability and consistency factors for a medical
source’s medical opinions or prior administrative medical findings” in a benefits determination
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or decision and allows that the ALJ “may, but [is] not required to, explain how [they]
considered” the other factors. 20 C.F.R. § 404.1520c(b)(2). If, however, two or more medical
opinions or prior administrative medical findings are equal in supportability and consistency “but
are not exactly the same,” an ALJ must also articulate the other most persuasive factors. 20
C.F.R. § 404.1520c(b)(3). In addition, when medical sources provide multiple opinions or
multiple prior administrative findings, an ALJ is not required to articulate how she evaluated
each opinion or finding individually but must instead articulate how she considered the opinions
or findings from that source in a single analysis using the five factors described above. 20 C.F.R.
§ 404.1520c (b)(1). Finally, the regulations explain that the SSA is not required to articulate how
it considered evidence from non-medical sources. 20 C.F.R. § 404.1520c(d).
The applicable regulations provide the following guidance for how ALJs should evaluate
the “supportability” and “consistency” of medical source opinions and prior administrative
findings:
(1) 	Supportability. 	The 	more 	relevant 	the 	objective 	medical 	evidence 	and
supporting explanations presented by a medical source are to support his or her
medical opinion(s) or prior administrative medical finding(s), the more persuasive
the medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and nonmedical
sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.
20 C.F.R. § 404.1520c(c)(1)-(2). In practice, this means that the “supportability” factor
“concerns an opinion’s reference to diagnostic techniques, data collection procedures/analysis,
and other objective medical evidence.” Reusel v. Comm’r of Soc. Sec., No. 5:20-CV-1291, 2021
WL 1697919, at *7 n.6 (N.D. Ohio Apr. 29, 2021) (citing SSR 96-2p, 1996 SSR LEXIS 9 (July
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2, 1996) (explaining supportability and inconsistency); 20 C.F.R. § 404.1527(c)(3), (4)
(differentiating “supportability” and “consistency”); 20 C.F.R. § 404.1520c(c)(1), (2) (further
clarifying the difference between “supportability” and “consistency” for purposes of the post-
March 27, 2017 regulations)).
The ALJ summarized and analyzed the prior administrative medical findings of the state
agency consultants, Carl Tischler, Ph.D., and Joan Williams, Ph.D. as follows:
The [ALJ] finds the State agency mental assessments completed by Carl Tishler,
Ph.D. dated January 15, 2020 and Joan Williams, Ph.D. dated June 6, 2020, which
find mild to moderate mental limitation, are not persuasive (B2A, B3A, B6A, B7A).
Specifically, they opined [Plaintiff] could carry out 1-4 step work tasks and engage
in superficial contact with others in the workplace. The undersigned finds this is an
overestimate of the severity of [Plaintiff]’s restrictions/limitations. The State
agency assessments are not entirely consistent with the overall medical evidence of
record and the findings of [Plaintiff]’s treating physicians. For example, in
September 2019, Yazan Suradi, M.D.’s examination found [Plaintiff] awake, alert,
and oriented with fluent speech (B20F/72). Additional findings that month note
[Plaintiff] was in no acute distress, alert and oriented, with intact cranial nerves,
and was reportedly negative for depression (Id. at 50, 52; see also B10F/9, 29 for
similar findings). It was noted [Plaintiff] was negative for memory loss (Id. at 47).
The next month, it was observed [Plaintiff] was not nervous or anxious and
examination found [Plaintiff] in no distress, alert, oriented, and with normal
behavior and thought content (B15F/11). Similarly, in November 2019, the record
documents [Plaintiff] appeared alert, oriented x4, and with no focal deficits
(B20F/35, 42). He displayed benign affect, normal mood, and his cognition prior
to admission showed appropriate judgment and safety awareness (Id.). He was
reportedly negative for depression with the examination describing him as
cooperative (Id. at 26-27).
Indeed, treatment records from 2018 through 2020 from one of [Plaintiff]’s treating
sources note mental status examinations finding [Plaintiff] alert and oriented with
appropriate mood and affect with a review of systems negative for psychiatric
symptoms (B14F/6, 8, 11, 16). Two months prior to the consultative examination,
the medical record notes a review of systems again indicated [Plaintiff] was not
nervous or anxious with examination findings him in no acute distress, alert, and
oriented (Id. at 8, B15F/11). His behavior was normal as was thought content
(B15F/11). Also of note, 5 days earlier, a consultative examination noted [Plaintiff]
was able to describe his medical symptoms, carry on a good conversation, and take
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part in performing requested tests. He appeared to have good memory of medical
events (B12F/15).
Records dated September, October, and November 2019 and February 2020 detail
intact orientation, appropriate mood, and negative psychiatric symptoms (B14F/6,
8, 11, 16). Moreover, in May 2020, [Plaintiff]’s treating provider, Stacy Fletcher,
CNP, noted [Plaintiff] acknowledged his anxiety was “doing okay” and he had not
had his Xanax filled. His review of systems was negative for depression and
insomnia with a PHQ-2 score of 1 (B16F/7-8). Ms. Fletcher’s examination found
[Plaintiff] with no suicidal or homicidal ideations, in no acute distress, with normal
ability to communicate, intact cranial nerves, and normal psychiatric functioning,
including normal orientation, mood, and affect (Id. at 9). His ADHD was listed as
stable and his bipolar disorder in partial remission (Id.). Subsequent records dated
January 2021 again note [Plaintiff] was reportedly negative for memory loss with
no obvious psychiatric symptoms identified (B20F/13). Additional findings in
October 2021 again note normal findings (B14F/16) with a review of systems
negative for psychiatric symptoms or complaints (Id.). [Plaintiff] testified he has
not required inpatient treatment or hospitalization for mental health symptoms; he
has no problems getting along with others and that his most significant limitation
is his vision.
(R. at 35-36.)
The ALJ also summarized and analyzed the statements of consultative examiner, Ryan
Wagner, Psy.D. as follows:
The [ALJ] finds the opinion of Ryan Wagner, Psy.D., who completed a consultative
psychological evaluation of [Plaintiff] dated December 28, 2019 is not persuasive
(B13F). During the evaluation, [Plaintiff] reported no problems understanding
directions. 	Mental 	status 	examination 	found 	him 	cooperative 	with 	rapport
adequately established. His thought process was clear and logical. His receptive
language skills were adequate. His thought content was noticeable for anxiety and
mood swings. Speech was clear and well articulated. He appeared somewhat
nervous but was able to maintain eye contact and did not appear overly distressed
(Id. at 4). He remained alert, responsive, and oriented to all spheres. He was not
confused and had no difficulty recalling aspects of his upbringing. He repeated 5
digits forward and 3 backward and 3 of 3 words after a brief delay. He was able to
calculate one iteration of Serial 7s and serial 3s with one error. He mentally
calculated basic subtraction, multiplication, and division. Knowledge appeared
intact. Judgment appeared sufficient for him to make decisions affecting his future
and conduct his own living arrangements efficiently.
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Dr. Wagner diagnosed bipolar II disorder and generalized anxiety disorder and
found [Plaintiff] capable of managing funds. He observed [Plaintiff] performed in
the low average range on brief abstract reasoning activities suggesting difficulty
understanding instructions. He noted low average performance on brief short-term
memory activities suggesting difficulty remembering instructions. He noted
[Plaintiff] could converse effectively to complete the evaluation and did not report
problems learning work-related activities. These findings are not entirely consistent
with Dr. Wagner’s notation that [Plaintiff] reported no problems understanding
directions (Id. at 2). Dr. Wagner noted [Plaintiff] struggled with Serial 7s and Serial
3s, suggesting some difficulty maintaining attention and focus but displayed
adequate task persistence when answering questions. He noted problems with
attention and concentration in work environments which may affect [Plaintiff]’s
ability to complete tasks in a timely effective manner. However, Dr. Wagner’s
examination found [Plaintiff] alert, responsive, and oriented to all spheres. He was
not confused and had no difficulty recalling aspects of his upbringing and was able
to mentally calculate basic subtraction, multiplication, and division (Id. at 4). Dr.
Wagner found [Plaintiff] was cooperative and pleasant and did not describe a
history of conflict with others. He observed [Plaintiff] appeared depressed and
anxious when discussing past and current pressures and his depressive symptoms
may compromise his ability to respond to work pressures and anxious symptoms
may compromise his ability to respond to work pressures and lead to increased
agitation and experience of panic attacks.
This opinion is not entirely persuasive as not entirely consistent with Dr. Wagner’s
own observations and notations that [Plaintiff] reported no problems understanding
directions, was cooperative, rapport was adequately established, his thought
processes were clear and logical, receptive language skills were adequate, and he
was alert, responsive and oriented to all spheres.
Further, he was not confused and had no difficulty recalling aspects of his
upbringing. He repeated 5 digits forward and 3 digits backward and 3 of 3 words
after brief delay. He was able to calculate one iteration of serial 7s and complete
serial 3s in 24 seconds making one error. He mentally calculated basic subtraction,
multiplication and division and his fund of knowledge was intact (Id. at 2-5). He
also found [Plaintiff]’s judgment appeared to be sufficient for him to make
decisions affecting his future, conduct his own living arrangements efficiently and
he was capable of managing funds (Id.). He was able to converse effectively to
complete the evaluation. He did not report problems learning work-related
activities and he displayed adequate task persistence when answering questions (Id.
at 5).
Further, this opinion is not entirely consistent with the overall medical evidence of
record and subsequent medical evidence of record. In September 2019, for
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example, examinations found [Plaintiff] in no acute distress, alert and oriented
times 3 with normal affect, judgment, and mood (B10F/9, 29). Treatment records
from 2018 through 2020 note similar findings, finding [Plaintiff] alert and oriented
times with appropriate mood and affect with a review of systems negative for
psychiatric symptoms (B14F/4,6, 8, 11, 16; see also B15F/11). Also of note, 5 days
earlier, consultative examiner Dr. Hassan found [Plaintiff] was able to describe
medical symptoms, carry on a good conversation, and take part in performing the
requested tests. [Plaintiff] appeared to have good memory of his medical events
(B12F/15). Moreover, in May 2020, Stacy Fletcher CNP noted [Plaintiff]’s report
that his anxiety was “doing okay,” he had not had his Xanax filled and a review of
systems was noted to be negative for depression, insomnia with a PHQ-2 score of
1 (B16F/7, 8). Nurse practitioner Fletcher’s examination found [Plaintiff] with no
suicidal or homicidal ideation and in no acute distress, with normal ability to
communicate, cranial nerves grossly intact and psychiatrically normal functioning
including oriented to time, place, person and situation with an appropriate mood
and affect. She opined [Plaintiff]’s ADHD was stable and his bipolar disorder was
in partial remission (Id. at 9). [Plaintiff] testified that he had only started ADHD
medication 2 years prior to the hearing. [Plaintiff] testified he did not require
inpatient treatment or hospitalization for his mental health symptoms but did meet
with someone at his family doctor’s office one and a half years prior for 3 months.
[Plaintiff] further testified he had no problems getting along with family, friends
neighbors or others. The undersigned inquired as to whether [Plaintiff] had any
difficulty with memory and maintaining attention and concentration, to which he
responded that he was trying to think of an example of his difficulties. He then
stated that he reads the same sentence over and over. On the other hand, [Plaintiff]
testified that his most significant limitation is his vision. [Plaintiff]’s testimony did
not suggest more than mild mental health limitations.
Also of note, while Dr. Wagner had the opportunity to examine [Plaintiff] in person,
he did so on only one occasion and not in a treating context.
(R. at 38-39.)
Plaintiff argues that the ALJ played doctor and substituted her own judgment for
those of the three psychologists above when she found their opinions unpersuasive. (ECF
No. 13 at PageID 2779-80.) A brief review of the ALJ’s analysis here completely
undermines Plaintiff’s argument.
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As the Commissioner points out, when considered as a whole, the record
supported the ALJ’s determinations:
 	reviews of symptoms that were negative for psychiatric complaints such as depression,
memory loss, fatigue, and insomnia (which is a low score for depressive symptoms) (R. at
23-24, 36, citing 2171, 2173, 2176, 2181, 2210, 2211, 2212, 2235, 2248-2249, 2269, 2272);
 	normal physical examination findings showing that Plaintiff was alert and fully oriented
with intact cranial nerves, no distress, fluent speech, normal mood, normal affect, normal
behavior, normal judgment, normal memory, normal cognition, no nervousness or
anxiousness, 	and 	appropriate 	responses, 	written 	expression, 	reading, 	conversation,
responsive naming, commands, and sentence completion (R. at 23-24, 36, citing R. at 1859,
1879, 2154, 2171, 2173, 2176, 2181, 2212, 2240, 2248-2249, 2257-2258, 2264, 2289-
2290, 2294, 2347);
 	a mostly normal consultative mental examination from Ryan Wagner, Psy.D., showing that
Plaintiff was cooperative, alert, responsive, and oriented; easily established rapport; had
clear and logical thought processes, adequate receptive language skills, clear and well-
articulated speech, no current suicidal ideation or intent, no confusion, no difficulty
recalling aspects of his upbringing, some thought content involving anxiety swings, limited
insight but intact judgment to make decisions affecting his future and conducting his own
arrangements sufficiently, an ability to manage funds, and an ability to perform simple
mathematic calculations, calculate serial 7s, complete serial 3s with only one error, and
recall 5 digits forward, 3 backward, and 3 of 3 words after brief delay (R. at 23-24, 39-40,
2161-2162);
 	Plaintiff’s reported daily living activities at the consultative mental examination showing
that he had the ability to attend to grooming and personal hygiene, prepare meals, drive,
and go to the store for necessities (R. at 23, citing R. at 2161);
 	reports at a physical consultative physical examination that Plaintiff had a good memory
of medical events and was able to describe his medical symptoms, carry on a good
conversation, and take part in performing requested tests (R. at 36, citing R. at 2154);
 	treatment records noting that Plaintiff’s anxiety was “doing okay,” his ADHD was within
normal limits and stable, and his bipolar disorder was in partial remission (R. at 24, 36,
citing R. at 2209, 2211); and
 	.Plaintiff’s testimony at the hearing that he was diagnosed with ADHD as a child but had
started medications only 2 years prior to the hearing, that he had not required inpatient
treatment or hospitalization for his mental health symptoms and instead only met with
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someone at his family doctor’s office over a year ago for 15 to 20 minutes every 3 months,
that his medications helped somewhat with taking the edge of his symptoms, that Adderall
helped him focus for a few hours, and that he had no difficulty getting along with family,
friends, neighbors, or others. (R. at 24, 38, 56-57, 120-121, 123, 126-127).
On this record, Plaintiff contends that the ALJ played doctor and substituted her own
judgment for those of the medical professionals when she found the prior administrative
medical findings and opinions unpersuasive. 	The Court agrees with the Commissioner that
this argument lacks merit because it is essentially a disagreement with how the ALJ decided to
weigh the medical opinions and evidence, “which is clearly not a basis for . . . setting aside the
ALJ’s factual findings.” 	Mullins v. Sec’y of HHS, 836 F.2d 980, 984 (6th Cir. 1987). 	It is
well-established that it is the ALJ’s function to resolve conflicts in the medical evidence. See
White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009) (ALJs have the “difficult task”
of “weighing the evidence”). As the Court of Appeals for the Sixth Circuit has held, “[a]n ALJ
does not improperly assume the role of a medical expert by weighing the medical and non-
medical evidence before rendering an RFC finding.” Coldiron v. Comm’r of Soc. Sec., 391 F.
App’x. 435, 439 (6th Cir. 2010) (internal citations omitted).
Plaintiff acknowledges that the ALJ’s function to resolve conflicts in the medical evidence
“may well be true as a general statement.” (Pl’s Reply at 9.) She contends, however, in this
particular situation, where the same ALJ previously found those medical opinions to be well
based and persuasive, “the Court should be skeptical, to say the least, when that same ALJ on
remand reverses course and now finds those medical opinions unpersuasive.” (Id.) Even if
the Court were skeptical, the ALJ was within her discretion to reweigh the evidence.
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Moreover, the ALJ is within her right to assess the limitations in the RFC because the ALJ
alone, and not a doctor, is responsible for determining a claimant’s RFC. See 20 C.F.R. §§
405.1546, 416.946; Coldiron, 391 F. App’x. at 439 (“The Social Security Act instructs that the
ALJ – not a physician – ultimately determines a claimant’s RFC.”) The Social Security
regulations explain that the ALJ has the final responsibility for determining a claimant’s RFC
“based on all the relevant medical and other evidence” in the record, including medical
opinions. See 20 C.F.R. §§ 404.1527(a)(2), (d)(2), 404.1545(a), 416.927(a)(2), (d)(2),
416.945(a). Further, while the ALJ considers medical source opinions, an ALJ need “not defer
or give any specific evidentiary weight, including controlling weight, to any medical opinion(s)
or prior administrative medical finding(s), including those from [the claimant’s own] medical
sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
For these reason, this aspect of Plaintiff’s Statement of Errors is also OVERRULED.
VI. 	CONCLUSION
In sum, from a review of the record as a whole, the Court concludes that substantial
evidence supports the ALJ’s decision denying benefits. Based on the foregoing, Plaintiff’s
Statement of Errors (ECF No. 13) is OVERRULED and the Commissioner’s decision is
AFFIRMED. The Clerk is DIRECTED to enter judgment in favor of Defendant.
IT IS SO ORDERED.
Date: February 10, 2026 	s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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