The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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MARCELLA J. BROWN, :
: Case No. 21-cv-01042
Plaintiff, :
: OPINION & ORDER
: [Resolving Doc. 1]
vs. :
:
COMMISSIONER OF :
SOCIAL SECURITY, :
:
Defendant. :
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JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In this Social Security case, this Court’s review is limited to whether the ALJ failed to
properly evaluate an occupational therapist’s medical opinion according to the applicable
regulations.
Finding that the ALJ erred, the Court VACCATES the Commissioner’s decision that
Plaintiff was not disabled and REMANDS for further proceedings consistent with this
Opinion and Order.
I. Background1
In August 2018, Plaintiff Marcella Brown filed an application for Supplemental
Security Income, claiming she was disabled due to post-traumatic stress disorder, bipolar
disorder, general anxiety disorder, severe depressive disorder, and chronic lower back
pain.2
1 The Court discusses the background only as necessary to resolve Defendant’s objection. Parts I and II of the
report and recommendation discuss the administrative record in full. Doc. 14 at 1–10.
After a hearing, an ALJ issued a written decision finding Brown not disabled.3 The
decision became final on March 15, 2021.4
On May 19, 2021, Brown filed a Complaint challenging the Commissioner’s final
decision.5 The case was referred to U.S. Magistrate Judge Jonathan Greenberg.6 In a
report, Judge Greenberg recommended that this Court vacate and remand the
Commissioner’s decision.7 Defendant filed a single objection.8 Plaintiff responded.9
II. Discussion
The Federal Magistrates Act requires a district court to conduct de novo review of
report and recommendation objections.10 This Court’s review of the ALJ’s decision is
limited to whether the decision is “supported by substantial evidence and was made
pursuant to proper legal standards.”11 However, “[e]ven if supported by substantial
evidence, [ . . . ] a decision of the Commissioner will not be upheld where the [Social
Security Administration] fails to follow its own regulations and where that error prejudices
a claimant on the merits [. . . ].”12
A. Occupational Therapist Milicia’s Opinion
3 at 15–24.
4 at 1–6.
5 Doc. 1.
6 Local R. 16.2.
7 Doc. 14 at 18.
8 Doc. 15 at 1 (“[T]he Commissioner objects to the Magistrate Judge’s recommendation that remand is
appropriate because the ALJ failed to evaluate properly the opinion of Plaintiff’s occupational therapist,
Michael Milicia, OT/L.”).
9 Doc. 16.
10 28 U.S.C. § 636(b)(1).
11 , 486 F.3d 234, 241 (6th Cir. 2007) (citing 42 U.S.C. § 405(g)).
12 ., 572 F.3d 272, 282 (6th Cir. 2009) (quoting .,
478 F.3d 742, 746 (6th Cir. 2006)).
On September 14, 2018, Brown underwent a physical capacity evaluation with
Michael Milicia, OT/L.13 Milicia spent approximately 120 minutes one-on-one with Brown
conducting the assessment.14 Milicia concluded Brown had the ability to perform
sedentary physical demands; however, “she is unable to stand for 1 hour and 45 minutes,
and sit at least 2 hours at one time.”15 Brown could occasionally reach, perform fine
coordination, gross coordination, and firm grasping, and walk.16 Brown could frequently
pinch and perform simple grasping.17
Milicia also reported that his conclusions were based on the following observations:
Consistency of Effort results obtained during testing indicate significant
observational and evidence based inconsistencies resulting in self-limiting
behavior and submaximal effort.
Reliability of Pain results obtained during testing indicate pain could have
been considered while making functional decisions.18
B. Medical Opinion Regulations
The applicable regulations19 in this case both grant the Commissioner latitude in
evaluating medical evidence and require the agency to “articulate how [it] considered the
medical opinions” with respect to the “most important factors.”20 Those factors are:
13 OT/L designates a state-licensed occupation therapist who has not maintained board certification and
registration with the National Board for Certification in Occupation Therapy.
14 Tr. at 1369.
15 at 1368.
16
17
18
19 Since Brown’s claim was filed after March 27, 2017, the Social Security Administration’s “new regulations”
for evaluation of medical opinion evidence apply here.
, 2017 WL 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017).
20 20 C.F.R. § 404.1520c; , 554 F. Supp. 3d 900, 908 (E.D. Mich.
2021) (“Because of the greater latitude afforded ALJs under the new regulations, the importance of cogent
explanations is perhaps even more important.”); , No. 20-495, 2021
WL 860506, at *8 (N.D.N.Y. Mar. 8, 2021) (quoting 82 Fed. Reg. 5844-01 (2017) (“The new regulations
promulgated by the Social Security Administration set forth a ‘minimum level of articulation’ to be provided
(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.21
C. The ALJ’s Written Decision
The ALJ determined that Brown could “perform light work.”22 The ALJ continued:
“[S]he can occasionally balance, stoop, kneel, crouch and crawl; can occasionally climb
ramps and stairs, [ . . . ] and mentally, she can perform simple, routine tasks in a low stress
environment (defined as no fast pace, assembly work, strict quotas or frequent duty
changes).”23
In reaching that determination, the ALJ discounted Milicia’s assessment. The ALJ
wrote:
Michael Milicia, OT/L opined the claimant can stand and [ . . . ] sit [ . . . for]
less [than] two hours in a workday and has limitations in manipulative and
postural activities (Exhibit B8F). While Mr. Milicia’s opinion is supported
with his examination findings, he noted that the claimant’s effort during his
examination was inconsistent and suboptimal (Exhibit B8F/2). Accordingly,
the undersigned finds his opinion unpersuasive.24
D. Analysis
in determinations and decisions, in order to ‘provide sufficient rationale for a reviewing adjudicator or
court.’”).
21 20 C.F.R. § 404.1520c(c)(1)–(2).
22 Tr. at 20.
23
24 Tr. at 22 (typos corrected for sake of comprehension).
The Court finds that the ALJ did not properly apply the Supportability and
Consistency factors as medical opinion regulations require.
First, the ALJ’s one-clause rejection of Milicia’s opinion on the grounds that Brown’s
effort during the exam was “inconsistent and suboptimal” was inadequate. In some cases,
as in .,25 a claimant’s “poor effort” may provide grounds to
discredit a medical opinion.26 But that is not the scenario here: Milicia’s opinion suggests
that Brown’s inconsistent effort was the pain she was experiencing, thereby
potentially adding credibility to the assessment of her physical limitations.
Second, Defendant concedes that the ALJ “did not expressly mention the term
consistency in addressing Mr. Milicia’s opinion.”27 And while Defendant suggests that the
ALJ’s reference to “Plaintiff’s inconsistent and less than full effort during the examination
also highlighted the [Milicia] opinion’s lack of consistency with other normal physical
findings in the longitude record,”28 this argument is unpersuasive. While there is varying
evidence regarding the extent of Plaintiff’s physical condition,29 the regulations require the
ALJ to discuss the Milicia evidence in relation to other medical evidence. For example, as
Judge Greenberg noted,30 the ALJ failed to examine the Milicia evidence in relation to Dr.
Eulogio Sioson’s relatively consistent physical examination finding that: “Manual muscle
testing was affected by pain. [Brown’s] left thigh [is] 3 cm smaller.”31
25 No. 5:16-cv-1, 2017 WL 467827 (N.D. Ohio Feb. 2, 2017).
26 at *13.
27 Doc. 15 at 3.
28 Doc. 15 at 3.
29 Doc. 15 at 3–4 (referencing relatively more normal findings).
30 Doc. 14 at 18.
31 Tr. at 770.
Lastly, the decision in only illustrates the
deficiencies in the ALJ’s decision. There, the court observed: “the regulations do not
require the ALJ to issue a perfect decision.”33 Because the ALJ in that case articulated three
cogent reasons to find a medical opinion unpersuasive, the court found the decision
sufficiently thorough, even though the ALJ did not strictly follow the regulations’
framework.34 But that is not what happened here: without adequate explanation, the ALJ
discounted an entire medical report that was based on a physical examination.
III. Conclusion
For these reasons, the Court VACATES and REMANDS the Commissioner’s
decision.
IT IS SO ORDERED
Dated: July 20, 2022
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
32 No. 20-cv-769, 2021 WL 1222667 (N.D. Ohio Mar. 16, 2021), , No.
20-cv-769, 2021 WL 1214809 (N.D. Ohio Mar. 31, 2021).
33 at *6.
34