Brown v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SHON BROWN, CASE NO. 5:22-CV-01918-DAC

Plaintiff, MAGISTRATE JUDGE DARRELL A. CLAY

vs. MEMORANDUM OPINION & ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

INTRODUCTION

Plaintiff Shon Brown challenges the Commissioner of Social Security’s decision denying

disability insurance benefits (DIB) and supplemental security income (SSI). (ECF #1). The District

Court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). On October 26, 2022, pursuant to

Local Civil Rule 72.2, this matter was referred to me to prepare a Report and Recommendation.

(Non-document entry dated Oct. 26, 2022). On October 28, 2022, pursuant to 28 U.S.C. § 636(c)

and Fed. R. Civ. P. 73, the parties consented to my exercising jurisdiction over this matter. (ECF

#7). Following review, and for the reasons stated below, I AFFIRM the Commissioner’s decision.

PROCEDURAL BACKGROUND

Mr. Brown filed for DIB and SSI in January 2020, alleging disability onset dates,

respectively, of February 20 and February 2, 2019. (Tr. 203-10). His claims were denied initially

and on reconsideration. (Tr. 85-100, 103-116). Mr. Brown then requested a hearing before an

administrative law judge. (Tr. 140-41). Mr. Brown (represented by counsel) and a vocational expert

(VE) testified before the ALJ on February 26, 2021. (Tr. 34-76). On May 25, 2021, the ALJ issued

a written decision finding Mr. Brown not disabled. (Tr. 13-33). The Appeals Council denied Mr.

Brown’s request for review, making the hearing decision the final decision of the Commissioner.

(Tr. 1-7; see 20 C.F.R. §§ 404.955, 404.981, 416.1455, and 416.1481). Mr. Brown timely filed this

action on October 26, 2022. (ECF #1).

FACTUAL BACKGROUND

I. PERSONAL AND VOCATIONAL EVIDENCE

Mr. Brown was 50 years old on the alleged onset dates, and 52 years old at the time of the

administrative hearing. (Tr. 243). He completed some college and earned his journeyman’s card

(Tr. 237) and has worked as a tool and die maker, mixer technician, machinist, and crane

operator. (Tr. 71).

II. RELEVANT MEDICAL EVIDENCE

On March 13, 2019, Mr. Brown went to the emergency department after a week of chest

pain and tingling in both shoulders and upper extremities. (Tr. 761). He reported having four

drinks that morning and fell off a barstool. (Id.). He complained of head pain but could not recall

whether he lost consciousness or any other events that occurred at the drinking establishment.

(Id.). Mr. Brown was intoxicated at the time of examination and could not give specifics, but

physical examination was normal except he was not oriented to time. (Tr. 762-63). A brain CT was

normal, and a chest X-ray revealed hyperinflation and markings suggestive of early infiltrate in the

bilateral pulmonary arteries. (Id.). He was diagnosed with a closed head injury with a brief loss of

consciousness, acute alcohol intoxication with alcoholism, and a history of hypertension. (Tr. 766).

On July 11, 2019, Mr. Brown had a syncopal episode at work, lost consciousness, and hit

his head, resulting in a laceration on his forehead. (Tr. 397). At the emergency department, Mr.

Brown reported he did not have symptoms prior to the event and denied any current symptoms.

(Id.). Mr. Brown’s wife reported one prior episode on Super Bowl Sunday, but Mr. Brown refused

to go to the hospital afterward. (Id.). Physical examination and EKG were normal, and he denied

chest pain, pressure, and shortness of breath. (Tr. 397-98). Mr. Brown left the emergency

department against medical advice after receiving an IV load of Keppra. (Id.).

On August 15, 2019, Mr. Brown underwent electroencephalography (EEG) testing to

diagnose seizures. (Tr. 441). The EEG was normal, without clear seizures or seizure tendencies.

(Id.).

On August 18, 2019, Mr. Brown reported to the emergency department two days after

falling down a flight of 14 steps and endorsed a seizure after the fall. (Tr. 751). He complained of

continued pain on the right side of his face with swelling and bruising. (Id.). Physical examination

revealed right periorbital edema and ecchymosis and tenderness over the right zygoma, but

otherwise Mr. Brown exhibited normal strength and sensation. (Tr. 752). A CT scan revealed a

right zygomatic/maxillary fracture with air in the facial and neck soft tissues. (Tr. 758). He received

antibiotics and was referred to an ENT but declined to schedule a follow-up appointment with a

plastic surgeon. (Tr. 754).

On August 26, 2019, an MRI brain scan revealed minor periventricular white matter

ischemic changes without evidence for acute infarction, focal mass, or hematoma. (Tr. 749).

On August 28, 2019, Lisa Humrighouse, PA-C, provided a Work Note stating Mr. Brown

had a seizure on August 16 and was restricted to light duty and must refrain from using heavy

machinery or working at heights until October 9, 2019. (Tr. 438).

On November 16, 2019, around midnight, Mr. Brown fell after drinking 7 beers. (Tr. 449).

At around 4:30 a.m., his wife found him at the bottom of the stairs. (Id.). Mr. Brown arrived at the

hospital that afternoon after drinking five more beers. (Id.). He reported being worked up for

seizures but felt alcoholism was the main cause for his falls. (Id.). Mr. Brown also reportedly

stopped taking Keppra three months before because he continued having seizures. (Tr. 447). He

reported pain at the left clavicle but denied neck and back pain, shortness of breath, chest pain,

and extremity numbness and tingling. (Tr. 449). Except the clavicle area, physical examination was

normal. (Tr. 449-50). A CT brain scan revealed no acute abnormality. (Tr. 451). A chest CT

revealed a comminuted, mildly displaced fracture of the left clavicular head with surrounding

hematoma, additional fracture at the acromioclavicular joint, displaced left lateral fourth rib

fracture, and hepatic steatosis. (Tr. 452). The treating provider felt Mr. Brown’s fall was the result

of his alcoholism (Tr. 450) and counseled him to make significant life changes. (Tr. 452). Mr.

Brown received a sling and agreed to follow up with orthopedics. (Id.).

On May 7, 2020, Mr. Brown was brought to the emergency department after experiencing

a syncopal episode and lost consciousness at work. (Tr. 480). A bystander reported “seizure-like

activity” and EMS notes indicated Mr. Brown was awake but confused during transit to the

hospital. (Id.). On examination, he knew he was at a hospital and that it was 2020 but could not

identify the hospital or the month; physical examination was otherwise normal. (Tr. 481). He

reported drinking eight to ten beers a day, but later reported twelve to fifteen a day, yesterday

being his most recent drink. (Tr. 482, 487). Radiology testing revealed remote fractures to the right

maxillary sinus and the fifth and sixth left posterior ribs. (Tr. 482). The treating physician was

concerned for alcohol withdrawal, seizure, syncope, and epilepsy, and thus admitted Mr. Brown

for further workup. (Tr. 483).

On May 8, 2020, during an inpatient consultation, John Collins, M.D., noted the

following:

Initial complaint(s): Patient had been at work when he noticed the onset of

lightheaded sensation. He subsequently fell and lost consciousness getting[sic] his

head on the floor. Bystanders noted seizure type activity with post event confusion

as reported by EMS when they arrived on the scene. There was no note of any focal

weakness, sensory changes, problems with his speech, or problems with the vision

or swallow.

. . .

Other history: Patient does have a history of being[sic] and daily alcohol use (12-15

beers daily). Patient has no desire to quit alcohol use currently. He has had the

seizure activity in the past but the etiology is unclear. His last seizure was a grand

mal in September 2019 with a total of 4 prior seizures. First seizure was in February

of 2019. He had been on Keppra for seizure activity that was started by a

neurologist this[sic] he had seen in Fairmont. However, patient discontinued

Keppra because of side effects, which were confusion, fatigue, memory loss, and

worsened seizures. He has had seizures while drinking and when not drinking

alcohol.

(Tr. 491).

Except for left shoulder tenderness and limited range of motion, physical examination was

normal. (Tr. 493). Dr. Collins’ overall impression was seizure disorder, alcohol abuse disorder,

hypertension, adverse reaction of Keppra, and left shoulder injury. (Tr. 495). In narrative, Dr.

Collins stated:

Patient with [history of] seizures starting in February and ongoing with total of 5

lifetime seizures. Unable to tolerate Keppra therapy and will switch to alternative

medication. Patient’s alcohol use will be a factor in his seizure control, but he will

need AED therapy whether he continues to drink or not. No alcohol use

recommended, but this will take a commitment on his part. Given likely use[,] will

proceed with newer AED that should not have a significant interaction with

alcohol.

(Id.).

Dr. Collins provided an IV loading dose of Dilantin and prescribed a daily dose for

maintenance as well as folic acid and vitamin B supplements, recommended “alcohol use

reduction since cessation not likely in short term,” follow-up with neurology in four weeks for

seizure management, and follow-up with physical therapy and orthopedics for the left shoulder

injury. (Id.; Tr. 498). Upon discharge on May 9, 2020, Mr. Brown’s treating provider emphasized

he should avoid driving or operating heavy machinery until he sees a neurologist. (Tr. 498).

On May 21, 2020, Mr. Brown went to urgent care after a seizure. (Tr. 557). He reported

drinking ten to twelve beers daily and was gradually trying to cut back but not interested in

quitting. (Id.). He also reported some noncompliance with Dilantin, admitting to missing three to

four doses the prior week. (Id.). Physical examination was normal. (Tr. 558-59). His urgent care

provider, Anastasia Rowland-Seymour, M.D., switched Mr. Brown to Dilantin ER for better

compliance. (Tr. 560).

Two days later, on May 23, 2020, Mr. Brown went to the emergency room after falling

down ten to twelve steps. (Tr. 665). He admitted consuming multiple alcoholic drinks before

falling. (Id.). He described the event as a seizure, but family witnesses reported no seizure-like

activity. (Id.). He lost consciousness for an unknown period but was alert and oriented when EMS

arrived. (Id.). Mr. Brown appeared inebriated and slurred his speech at the hospital. (Id.). He

complained of right wrist pain and, on examination, had multiple abrasions to his arm, leg, and

right hip, and mild tenderness to palpation of the right medial forearm. (Id.). Imaging revealed

right forearm fractures as well as a cervical fracture thought to be the result of arthritic change.

(Id.). Lab results showed an elevated level of alcohol and a low level of Dilantin. (Id.). Mr. Brown

declined to be admitted; instead, he received IV Dilantin and was later released after he

demonstrated ambulating with a steady gait. (Tr. 666).

On November 12, 2020, Mr. Brown underwent tilt table testing, the results of which were

compatible with vasovagal mediated/neurocardiogenic mediated symptoms without vasovagal

mediated/neurocardiogenic mediated syncope. (Tr. 745). The symptoms Mr. Brown experienced

during testing were dizziness upon standing, nausea, blurred vision, cool hands, feeling

diaphoretic, and vomiting, but he did not lose consciousness. (Tr. 744).

On December 17, 2020, Mr. Brown met with cardiologist Paul Moodispaw, M.D., for

evaluation of syncope. (Tr. 728). He reported he sometimes feels dizzy or lightheaded before an

event but other times he has no warning. (Id.). Mr. Brown stated he can sometimes feel his heart

working hard as if he was running a marathon. (Id.). He endorsed increased fatigue, random

dizziness and occasional balance issues, dull chest pain, shortness of breath with activity and

cough, left arm pain, lightheadedness, and syncope. (Tr. 730). Physical examination was normal.

(Tr. 731). Based on the results of the tilt table study, Dr. Moodispaw considered autonomic

dysfunction with vasovagal mediated physiology. (Id.). He diagnosed Mr. Brown with syncope,

essential hypertension, alcohol use, precordial chest pain, and dyspnea on exertion. (Tr. 733). He

also noted Mr. Brown stopped taking all his medications because he was not feeling well on them

and felt they were contributing to his issues. (Tr. 732). Dr. Moodispaw ordered an EKG, a 30-day

heart monitor, a complete echo study, a nuclear stress test, and a carotid duplex ultrasound and

advised Mr. Brown to limit his alcohol intake significantly. (Id.).

On January 26, 2021, Mr. Brown met with cardiologist Nagapradee Nagajothi, M.D., and

reported discomfort in the bilateral groin region radiating to his buttocks and weakness in his legs

when walking about 100 feet. (Tr. 995). He also stated he was slowly cutting back his alcohol

intake. (Id.). Dr. Nagajothi noted Mr. Brown’s recent coronary angiography that revealed bilateral

ostial common iliac artery stenosis. (Id.). Mr. Brown endorsed dizziness and balance problems,

chest pain, bilateral muscle aches with walking, shortness of breath with activity, muscle weakness,

joint pain, lightheadedness, and syncope. (Tr. 997). Physical examination revealed diminished and

absent lower extremity pulses but was otherwise normal. (Tr. 998). Dr. Nagajothi diagnosed

peripheral vascular disease and advised Mr. Brown to continue taking cilostazol, aspirin, and

statin, stop smoking, and start a walking program. (Tr. 999). I note Dr. Nagajothi’s treatment

records refer to an abnormal stress test (Tr. 996), dated December 24, 2021 (Tr. 999), but the

administrative record does not contain the results of the stress test.

III. MEDICAL OPINIONS

On August 19, 2020, state agency medical consultant W. Scott Bolz, M.D., reviewed Mr.

Brown’s medical records and determined he can occasionally lift and carry 20 pounds, 10 pounds

frequently; can stand and/or walk and sit for six hours each in an eight-hour workday; can

frequently climb ramps and stairs but never ladders, ropes, or scaffolds; can occasionally crouch;

and must avoid all exposure to hazards including dangerous machinery, unprotected heights, and

commercial driving. (Tr. 85-100). On October 7, 2020, Leslie Green, M.D., reviewed updated

medical records and affirmed Dr. Bolz’s opinion. (Tr. 103-15).

Dr. Moodispaw’s Treating Source Statement, dated January 14, 2021, does not offer

opinions about Mr. Brown’s physical limitations but refers to the most recent office visit note. (Tr.

724-27).

On January 20, 2021, Mr. Brown’s primary care physician, Eric Smith, M.D., completed a

Treating Source Statement regarding Mr. Brown’s mental functioning. (Tr. ). Dr. Smith stated Mr.

Brown has difficulty with memory, concentration, persistence, and pace “due to syncope and

alcohol use/history but not impaired concentration/ability to work with mind. Has limitations

due to orthostasis.” (Tr. 740-41). He opined Mr. Brown could maintain concentration and

persistence for over two hours at a time and could maintain regular attendance and be punctual

within customary tolerances, but would be off-task 25% of the workday and absent more than four

days a month due to syncope. (Tr. 740-43).

On February 5, 2021, Dr. Smith completed a Treating Source Statement regarding Mr.

Brown’s physical functioning. (Tr. 790-93). He offered the following opinions: Mr. Brown would

be off task more than 25% of the workday and absent more than four days a month; can pay

attention for less than 30 minutes at a time; lift and carry 20 pounds occasionally, 10 pounds

frequently; sit for eight hours and stand/walk for zero hours of an eight-hour workday, and needs

the option to sit or stand at will and elevate his legs while sitting; frequently reach bilaterally;

occasionally push and pull on the left; never operate foot controls; never climb stairs, ramps,

ladders, ropes, or scaffolds; never balance, crouch, or crawl; rarely stoop and kneel; have frequent

exposure to pulmonary irritants, occasional exposure to humidity, and no exposure to heights,

moving machinery, driving, extreme temperatures, or vibration. (Id.). Dr. Smith explained that,

due to severe peripheral arterial disease (PAD), use of legs to support his weight results in reduced

blood return, syncope, and pain, and Mr. Brown would need the ability to lie down every 30

minutes to 1 hour for about 10 minutes at a time. (Tr. 791). Dr. Smith also noted Mr. Brown

required operation/grafting surgery for PAD but could not afford it and was not insured. (Tr.

792).

IV. ADMINISTRATIVE HEARING

Mr. Brown was terminated from a long-standing position (2013-2019) (Tr. 46) for sitting

and sleeping on the job. (Tr. 47). Mr. Brown denied he was terminated for alcohol-related issues.

(Id.). More recently, he was fired after two convulsive episodes because he could not perform the

position within his doctor’s prescribed functional limitations. (Tr. 45). About two months before

the hearing, Mr. Brown began weaning his alcohol intake and, at the time of the hearing,

estimated he consumed 2 to 3 beers daily, sometimes none at all. (Tr. 57).

Mr. Brown cannot work because he suffers from convulsions, once thought to be seizures,

possibly related to arterial blockages. (Tr. 53). Typically, Mr. Brown experiences 2 to 3 convulsions

in a month-long period and then does not have any for 2 to 3 months thereafter. (Tr. 70). Mr.

Brown does not recall his symptoms during these episodes, but his wife and co-workers say he acts

normal and then drops to the ground without warning. (Tr. 55). Mr. Brown has some memory loss

after a convulsion. (Id.). Mr. Brown cannot identify any warning signs preceding a convulsion. (Tr.

67). Between episodes, Mr. Brown experiences shortness of breath with exertion and needs to sit

or take a nap. (Tr. 55). On other days, Mr. Brown does not need a nap. (Id.). Three to four days a

week, Mr. Brown is awake just three to four hours a day. (Tr. 68). Otherwise, Mr. Brown has no

other cardiac-related issues. (Id.).

Mr. Brown’s cardiologist prescribed Plavix and Lipitor and suggested he wear compression

socks to help with blood flow. (Id.). Despite the treatment, Mr. Brown reported he had an episode

two weeks before the hearing where he remained unconscious for thirty minutes and did not

remember anything until the next day. (Tr. 57-58). The doctor also limited Mr. Brown to lifting 10

pounds. (Tr. 60). Mr. Brown has tried medical marijuana but stopped after one month because it

was not effective. (Tr. 62).

Mr. Brown has a history of falls and resulting fractures and, as a result, feels aches and

pains. (Tr. 59). He attributes the falls to his convulsions and denies ever falling while drinking. (Tr.

61-62). On a good day, Mr. Brown can stand comfortably for two hours before needing to sit down

and can lift and carry a gallon of milk for fifteen feet. (Tr. 68-69). He believes it would exhaust him

to carry two gallons of milk an equal distance. (Tr. 69). Mr. Brown tried shoveling snow a few

weeks before the hearing and it took him three hours to complete a job that normally takes 45

minutes. (Tr. 65). He had to intermittently take rest breaks inside. (Id.). Mr. Brown stopped

chopping wood after August 2020 but can attend to his personal hygiene, do household chores,

and care for a puppy. (Tr. 63-64). Mr. Brown’s wife does most of the grocery shopping, but Mr.

Brown will occasionally go to the store for a few items. (Tr. 64).

Then VE Lynn Smith testified. She identified Mr. Brown’s past relevant work as follows:

 Tool and die maker (DOT #601.281-010; medium as generally performed,

heavy as actually performed; skilled SVP 7);

 Mixer technician (DOT #550.685-078; heavy as generally performed,

medium as actually performed; SVP 3);

 Machinist (DOT #600.280-018; medium as generally and actually

performed; skilled SVP 6); and

 Crane operator (DOT #921.663-010; light as generally performed, medium

as actually performed; SVP 5).

(Tr. 71).

Hypothetical Individual 1. The ALJ asked if a hypothetical individual of Mr. Brown’s age,

education, and experience could perform Mr. Brown’s past relevant work if limited to light

exertion and restricted as follows: can occasionally climb ramps and stairs, but never ladders,

ropes, or scaffolds; frequently balance; occasionally stoop, kneel, crouch, and crawl; can be

frequently exposed to poor ventilation from pulmonary irritants such as dusts, odors, fumes, and

gases, and occasionally exposed to extreme temperatures, humidity, and vibration; and must avoid

all exposure to extraordinary workplace hazards such as unprotected heights, moving mechanical

parts, and driving. (Tr. 72). The VE testified in the negative but identified three light, unskilled

SVP 2 positions the hypothetical individual could perform:

 Mail clerk (DOT #209.687-026; 75,000 jobs nationally);

 Cashier (DOT #211.462-010; 1.5 million jobs nationally); and

 Garment sorter (DOT #222.687-014; 300,000 jobs nationally).

(Tr. 72-73).

Hypothetical Individual 2. If, in addition to the restrictions above, the hypothetical

individual was limited to performing complex tasks but not at a production rate pace or quota, he

would still be able to perform the previously identified light jobs. (Tr. 73).

Hypothetical Individual 3. If further restricted to standing and walking for four hours in

an eight-hour workday and allowed to alternate between sitting and standing at 30-minute

intervals; frequently push, pull, reach, and operate hand controls with the upper extremities; and

occasionally push, pull, and operate foot controls with the lower extremities, the individual could

not perform the previously-identified jobs because he would be limited to sedentary work. (Tr. 73-

74).

Hypothetical 4. Finally, if subject to the limitations in Hypothetical 2 and further

restricted to lifting and carrying 10 pounds, the hypothetical individual would be restricted to

sedentary work. (Tr. 74).

The VE further testified employers typically tolerate an employee being off task no more

than 10% and absent no more than once per month. (Tr. 75).

THE ALJ’S DECISION

The ALJ’s decision included the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security

Act through December 31, 2024.

2. The claimant has not engaged in substantial gainful activity since February

20, 2019, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et

seq.).

3. The claimant has the following severe impairments: closed head injuries,

seizures, syncope, peripheral artery disease (PAD), and alcohol abuse (20

CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments

that meets or medically equals the severity of one of the listed impairments

in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925, and 416.926).

5. After careful consideration of the entire record, the undersigned finds that

the claimant has the residual functional capacity to perform light work as

defined in 20 CFR 404.1567(b) and 416.967(b) except: He can occasionally

climb ramps or stairs, but can never climb ladders, ropes, or scaffolds. He

can frequently balance, and can occasionally stoop, kneel, crouch, or crawl.

He can work in a setting with no more than frequent exposure to poor

ventilation or pulmonary irritants such as fumes, odors, dusts, or gases. He

can work in a sitting with no more than occasional exposure to extreme

temperatures, humidity, or vibration. He must avoid all exposure to

extraordinary workplace hazards such as unprotected heights, moving

mechanical parts, or commercial driving. Due to the symptoms of his

physical impairments, he cannot perform tasks at a production rate pace or

with strict production quotas.

6. The claimant is unable to perform any past relevant work (20 CFR

404.1565 and 416.965).

7. The claimant was born on January 8, 1969, and was 50 years old, which is

defined as an individual closely approaching advanced age, on the alleged

disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education (20 CFR 404.1564 and

416.964).

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a

finding that the claimant is “not disabled,” whether or not the claimant has

transferable job skills. (See SSR 82-41 and 20 CFR Part 404, Subpart P,

Appendix 2).

10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform (20 CFR 404.1569,

404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social

Security Act, from February 20, 2019, through the date of this decision (20

CFR 404.1520(g) and 416.920(g)).

(Tr. 19-27).

STANDARD OF REVIEW

In reviewing the denial of Social Security benefits, the Court “must affirm the

Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the

correct legal standards or has made findings of fact unsupported by substantial evidence in the

record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial evidence is

more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Besaw v. Sec’y of Health &

Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner’s findings “as to any fact if

supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d

830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)).

In determining whether the Commissioner’s findings are supported by substantial

evidence, the court does not review the evidence de novo, make credibility determinations, or weigh

the evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). Even if

substantial evidence or indeed a preponderance of the evidence supports a claimant’s position, the

court cannot overturn “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 court interference.

Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citing Baker v. Heckler, 730 F.2d 1147, 1150

(8th Cir. 1984)).

However, “a substantiality of evidence evaluation does not permit a selective reading of the

record. Substantiality of evidence must be based upon the record taken as a whole. Substantial

evidence is not simply some evidence, or even a great deal of evidence. Rather, the substantiality of

evidence must take into account whatever in the record fairly detracts from its weight.” Brooks v.

Comm’r of Social Security, 531 F. App’x 636, 641 (6th Cir. 2013) (cleaned up).

A district court cannot uphold an ALJ’s decision, even if there “is enough evidence in the

record to support the decision, [where] the reasons given by the trier of fact do not build an

accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp.

2d 875, 877 (N.D. Ohio 2011) (internal quotations omitted). Even if substantial evidence supports

the ALJ’s decision, the court must overturn when an agency does not observe its own procedures

and thereby prejudices or deprives the claimant of substantial rights. Wilson v. Comm’r of Soc. Sec.,

378 F.3d 541, 546–47 (6th Cir. 2004).

STANDARD FOR DISABILITY

Eligibility for benefits is predicated 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.” 20 C.F.R. §§ 404.1505(a) and 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A).

The Commissioner follows a five-step evaluation process—found at 20 C.F.R. §§ 404.1520 and

416.920—to determine if a claimant is disabled:

1. Was claimant engaged in a substantial gainful activity?

2. Did claimant have a medically determinable impairment, or a combination

of impairments, that is “severe,” which is defined as one which substantially

limits an individual’s ability to perform basic work activities?

3. Does the severe impairment meet one of the listed impairments?

4. What is claimant’s residual functional capacity and can claimant perform

past relevant work?

5. Can claimant do any other work considering her residual functional

capacity, age, education, and work experience?

Under this five-step sequential analysis, the claimant has the burden of proof in Steps One

through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to

establish whether the claimant has the residual functional capacity to perform available work in

the national economy. Id. The ALJ considers the claimant’s residual functional capacity, age,

education, and past work experience to determine if the claimant could perform other work. Id.

Only if a claimant satisfies each element of the analysis, including inability to do other work, and

meets the duration requirements, is she determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f)

and 416.920(b)-(f); see also Walters, 127 F.3d at 529.

DISCUSSION

Mr. Brown claims the ALJ’s RFC is not supported by substantial evidence because the ALJ

did not properly evaluate Dr. Smith’s medical opinion. (Pl.’s Br., ECF #9, PageID 1064).

Specifically, Mr. Brown argues the ALJ did not sufficiently analyze either the supportability or

consistency of the opinion and did not point to specific evidence that would undermine any of the

limitations contained within the opinion. (Id. at PageID 1068). He argues this is not harmless error

because, “[h]ad Dr. Smith’s opinion been properly evaluated, it would have been found persuasive

and eliminated the ability to perform any light work under the RFC. The standing and walking

limitations opined by Dr. Smith would preclude light work.” (Id. at PageID 1069).

A claimant’s RFC is an administrative assessment of the extent to which the claimant’s

impairments and related symptoms may cause physical or mental limitations or restrictions that

may affect the capacity to do work-related activities. SSR 96-8p, 1996 WL 374184, at *2. The RFC

must be based on all relevant evidence in the case record, including but not limited to medical

history, medical signs and laboratory findings, the effects of treatment, reports of daily activities,

recorded observations, medical source statements, and the effects of symptoms. Id. at *5.

Because Mr. Brown filed his applications after March 27, 2017, medical opinions are

evaluated under the regulations found in 20 C.F.R. §§ 404.1520 and 416.920c. Under these

revised regulations, the ALJ is to articulate “how persuasive [he] find[s] all of the medical opinions

and all of the prior administrative medical findings in [the] case record.” Id. at

§§ 404.1520c(b); 416.920c(b).

The ALJ is not required to defer to or give any specific evidentiary weight to a medical

opinion, is not bound by the “treating physician rule,” and is not required to give a treating source

controlling weight. See Jones v. Comm’r of Soc. Sec., No. 19-1102, 2020 WL 1703735, at *2 (N.D.

Ohio Apr. 8, 2020). In determining the persuasiveness of a medical opinion, the ALJ considers

five factors: (1) supportability; (2) consistency; (3) relationship with the claimant, including length

of treatment relationship, frequency of examinations, purpose of the treatment relationship, and

examining relationship; (4) specialization; and (5) other factors that tend to support or contradict a

medical opinion. 20 C.F.R. §§ 404.1520c(c)(1)-(5); 416.920c(c)(1)-(5). The ALJ must articulate the

consideration given to the medical opinions in the record, grounded in the two “most important

factors” of supportability1 and consistency.2 20 C.F.R. §§ 404.1520c(a); 416.920c(a). An ALJ must

explain how he considered the factors of supportability and consistency, and “may, but [is] not

required to” explain the remaining factors of relationship with the claimant, specialization, or

other factors, absent the ALJ’s finding that two opinions are “equally” persuasive. See 20 C.F.R.

§§ 404.1520c(b)(2)-(3); 416.920c(b)(2)-(3). That said, just because an ALJ does not specifically use

the words “supportability” and “consistency” does not mean the ALJ did not consider those

1 “The more relevant the objective medical evidence and supporting explanations

presented by a medical source are to support his medical opinion(s) or prior administrative

medical finding(s), the more persuasive the opinion(s) and finding(s) will be.” 20 C.F.R.

§ 404.1520c(c)(1).

2 “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 opinion(s) and finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2).

factors. Hardy v. Comm’r of Soc. Sec., No. 2:20-CV-4097, 2021 WL 4059310, at *2 (S.D. Ohio Sept.

7, 2021).

Agency regulations no longer require deference to a treating physician’s opinion, but the

reason-giving requirement still exists so claimants (and reviewing courts) may understand the

disposition of their claims. See Hardy v. Comm’r of Soc. Sec., 554 F. Supp. 3d 900, 908 (E.D. Mich.

2021) (applying the reason-giving requirement “with equal force to the new regulations, which

require explanations for determinations that a medical opinion is unpersuasive.”). Agency

regulations “set forth a ‘minimum level of articulation’ to be provided in determinations and

decisions, in order to ‘provide sufficient rationale for a reviewing adjudicator or court.’” Warren I.

v. Comm’r of Soc. Sec., No. 20-495, 2021 WL 860506, at *8 (N.D.N.Y. Mar. 8, 2021) (quoting 82

Fed. Reg. 5844-01 (2017)). An “ALJ’s failure . . . to meet these minimum levels of articulation

frustrates [the] court’s ability to determine whether [the claimant’s] disability determination was

supported by substantial evidence.” Vaughn v. Comm’r of Soc. Sec., No. 20-1119, 2021 WL 3056108,

at *11 (W.D. Tenn. July 20, 2021). While the new regulations may be less demanding than the

former rules, “they still require that the ALJ provide a coherent explanation of [her] reasoning.”

Lester v. Saul, No. 20-01364, 2020 WL 8093313, at *14 (N.D. Ohio Dec. 11, 2020), report and

recommendation adopted, 2021 WL 119287 (N.D. Ohio Jan. 13, 2021). And “because of the greater

latitude afforded ALJs under the new regulations, the importance of cogent explanations is

perhaps even more important.” Hardy, 554 F. Supp. 3d at 908.

Here, the ALJ found Dr. Smith’s opinion unpersuasive, stating:

The stated limitations appear to be based to some substantial degree on the

claimant’s subjective reports, while the objective medical evidence relating to the

relevant conditions remains limited and treatment remains conservative. The

opinion also does not appear to take into account the impact of the claimant’s

noncompliance with treatment, in addition to his continued alcohol abuse.

(Tr. 24).

Elsewhere, in evaluating the state agency medical consultants’ opinions, the ALJ

determined:

The record does not support further reductions in standing/walking, with

peripheral artery disease only recently diagnosed and no objective findings

suggesting significant limitations in his ability to stand and walk. Indeed, it is noted

that the cardiologist recently advised him to start a walking program.

(Tr. 23). He also noted Mr. Brown’s reported daily activities as of August 2020: “[h]e reported he

gets up, smokes, takes a shower, watches the news, cleans, does laundry and yard work, cuts and

stacks wood, and goes camping sometimes.” (Id.).

In summary, the ALJ concluded as follows:

As a whole, the record in this case demonstrates: infrequent seizures in the context

of continued alcohol abuse and medication noncompliance; injuries from falls

associated with alcohol abuse, but with no follow up treatment to indicate that the

injuries have any significant ongoing impact; some work after the alleged onset date

repairing, cutting, and preparing dies for delivery, described as heavy exertion work;

and a recent diagnosis of peripheral artery disease, treated conservatively with

medications and advice to stop smoking and start a walking program. Based on the

foregoing, the undersigned finds the claimant has the above residual functional

capacity assessment, which is supported by the medical evidence of record, medical

source opinions, and the claimant’s activities of daily living.

(Tr. 25).

Here, “reading the decision as a whole and with common sense,” the ALJ properly

articulated how he considered the supportability and consistency of Dr. Smith’s February 2021

medical opinion. See Pritt v. Comm’r of Soc. Sec., 1:21-cv-1728, 2022 WL 2135304, *13 (N.D. Ohio

June 14, 2022); see also Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir. 2014)

(recognizing that the ALJ’s analysis may be found throughout the decision). In assessing whether a

medical opinion is supportable, “the focus is on the relevance of the objective medical evidence

and supporting explanations upon which the opinion is based.” Hale v. Comm’r of Soc. Sec., 1:20-

CV-240, 2022 WL 909021, at *4 (E.D. Tenn. Mar. 28, 2022). To support his opined limitations,

Dr. Smith does not cite to objective medical evidence or clinical findings, relying instead only on

Mr. Brown’s diagnoses of syncope and PAD and that such conditions can cause symptoms. (Tr.

791-93).

A diagnosis does not constitute objective medical evidence. See 20 C.F.R. § 404.1529(c)(2)

(providing that objective medical evidence is evidence obtained from the application of medically

acceptable clinical and diagnostic techniques, such as evidence of reduced joint motion, muscle

spasm, sensory deficit, or motor disruption). Additionally, the administrative record does not

contain Dr. Smith’s treatment notes regarding syncope or PAD, without which the ALJ cannot

compare the opinions with Dr. Smith’s clinical findings. However, in his January 2021 opinion

regarding Mr. Brown’s mental functioning, the evaluation of which Mr. Brown does not challenge,

Dr. Smith cited to tilt table testing as supportive of his syncope-related mental limitations. (Tr. 22).

In relation to tilt table testing, the ALJ noted elsewhere in the decision that the reviewing

cardiologist only recommended that Mr. Brown maintain adequate hydration and consider

compression stockings. (Id.). Read as a whole, I find the ALJ’s decision adequately articulated how

she considered the supportability of Dr. Smith’s opinions.

Turning to the ALJ’s evaluation of the consistency of Dr. Smith’s opinions, I conclude the

ALJ did not err. Consistency denotes “the extent to which the opinion is consistent with the

evidence from other medical sources and nonmedical sources in the claim.” Hardy, 2021 WL

4059310, at *3. Throughout the decision, the ALJ noted the limited objective medical evidence

regarding Mr. Brown’s relevant conditions, including normal physical examination findings. (Tr.

21, citing Tr. 397-98, 449-50, 752, 762-63; Tr. 22, citing Tr. 481, 493, 558-59). The ALJ also noted

Mr. Brown’s treating cardiologist, during an appointment for PAD, noted diminished and absent

bilateral lower extremity pulses and still recommended Mr. Brown stop smoking and start a

walking program (Tr. 23, citing Tr. 999), inconsistent with Dr. Smith’s opined limitations.

Reviewing the decision as a whole, the AL] adequately articulated how Dr. Smith’s opinions were

inconsistent with other substantial evidence in the record. Because the ALJ articulated how he

considered the supportability and consistency of Dr. Smith’s February 2021 opinion, I conclude

that substantial evidence supports the ALJ’s decision and thus Mr. Brown’s assertion of error is

without merit.

CONCLUSION

Following review of the arguments presented, the record, and the applicable law, I

AFFIRM the Commissioner’s decision denying disability insurance benefits and supplemental

security income.

Dated: September 7, 2023

} } /

DARRELLA.CLAY —t™”

UNITED STATES MAGISTRATE JUDGE

22