Smith v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KIMBERLY M. SMITH, CASE NO. 5:22-CV-01775-DAC

Plaintiff, MAGISTRATE JUDGE DARRELL A. CLAY

vs. MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

INTRODUCTION

Plaintiff Kimberly Smith challenges the Commissioner of Social Security’s decision

denying supplemental security income (SSI). (ECF #1). The District Court has jurisdiction under

42 U.S.C. §§ 1383(c) and 405(g). On October 4, 2022, pursuant to Local Civil Rule 72.2, this

matter was referred to me for preparation of a report and recommendation (non-document entry

dated Oct. 4, 2022), and the parties subsequently consented to my jurisdiction pursuant to 28

U.S.C. § 636 (ECF #9). Following review, and for the reasons stated below, I AFFIRM the

Commissioner’s decision.

PROCEDURAL BACKGROUND

Ms. Smith filed for SSI on August 28, 2020, alleging the onset of disability on August 1,

2020. (Tr. 191-96). The claim was denied initially and on reconsideration. (Tr. 92-97, 99-204). She

then requested a hearing before an Administrative Law Judge. (Tr. 122-24). Ms. Smith

(represented by counsel) and a vocational expert (VE) testified before the ALJ on July 20, 2021.

(Tr. 42-67). On August 23, 2021, the ALJ issued a written decision finding her not disabled. (Tr.

12-41). The Appeals Council denied Ms. Smith’s request for review, making the hearing decision

the final decision of the Commissioner. (Tr. 1-6; see 20 C.F.R. §§ 416.1455 and 416.1481).

FACTUAL BACKGROUND

I. PERSONAL AND VOCATIONAL EVIDENCE

Ms. Smith was 25 years old on her alleged onset date, and 26 years old at the time of the

administrative hearing. (Tr. 92). She completed high school and had no past relevant work. (Tr.

35, 50).

II. RELEVANT MEDICAL EVIDENCE

On August 1, 2019, Ms. Smith met with licensed professional clinical counselor Victoria

Gutbrod of Emerge Ministries, Inc. for counseling. (Tr. 342-45). During the session, Ms. Smith

discussed her younger brother’s recent hospitalization for suicidal thoughts and her concern that

her parents are not properly parenting her brother. (Tr. 344). Mental status examination revealed a

depressed and irritated mood, angry and labile affect, appropriate grooming, distracted demeanor,

poor judgment, fair concentration, and poor eye contact. (Id.).

On August 15, 2019, Ms. Smith met with Ms. Gutbrod for counseling. (Tr. 346-49). On

mental status examination, Ms. Smith was anxious with an expansive affect, displayed poor

hygiene, participated cooperatively during the session, maintained steady eye contact, and

displayed fair judgment and good concentration. (Tr. 348). During the session, Ms. Gutbrod

worked with Ms. Smith on building social skills and exploring social interactions and patterns.

(Id.).

On August 27, 2019, Ms. Smith informed Ms. Gutbrod she would be meeting with

someone from Medina County Board of Developmental Disabilities for a job assessment and

placement. (Tr. 352). She reported feeling emotionally and mentally unwell. (Id.). Mental status

examination revealed an anxious and depressed mood, apathetic and blunted affect, appropriate

appearance, participatory cooperation, fair judgment, good concentration, and steady eye contact.

(Tr. 352-53).

On September 9, 2019, Ms. Smith met with Ms. Gutbrod. (Tr. 355-57). She was anxious

with an expansive and blunted affect. (Tr. 356). She was disheveled but participated cooperatively

in the session and displayed fair insight, good concentration, and steady eye contact. (Tr. 356-57).

Ms. Smith returned to Ms. Gutbrod for counseling on October 24, 2019. (Tr. 358-61).

During the session, Ms. Smith and Ms. Gutbrod discussed next steps to meeting Ms. Smith’s

desire to be independent, including getting her driver’s license and a job with part-time hours. (Tr.

359). Mental status examination revealed a depressed, irritated, and anxious mood with an angry

and expansive affect, poor/unwashed and disheveled appearance, impaired judgment, fair

concentration, and steady eye contact. (Tr. 360). Ms. Gutbrod noted Ms. Smith was not

cooperative during the session. (Id.).

On October 25, 2019, Ms. Smith attended a pharmacological management session with

Rosemary McDonagh, RMHCNS, BC, at Cornerstone Psychological Services. (Tr. 285-86). Ms.

Smith reported that Buspar helps with anxiety. (Tr. 285). Mental status examination revealed a

well-groomed appearance, average eye contact and activity, clear speech that was coherent and goal-

directed, normal thought content, no auditory or visual hallucinations, logical and organized

thought process, full affect, cooperative behavior, and good insight and judgment. (Tr. 285-86).

Ms. Smith reported her mood was “better” and she was getting eight to nine hours of good quality

sleep. (Tr. 286). Ms. Smith also reported “fine” appetite and concentration. (Id.). She described

interpersonal relations as “better at work” with a new supervisor and related looking forward to

her sister’s Halloween party that evening. (Id.). She denied side effects of psychiatric medication

and described feeling calmer and happier on her current medications (Prozac for depression and

Buspar for anxiety). (Id.). Nurse McDonagh refilled Ms. Smith’s medications and directed her to

follow up in three to six months. (Id.).

On November 4, 2019, Ms. Smith attended a counseling session with Ms. Gutbrod. (Tr.

363-65). She reported navigating a lot of friendships and wanted to explore interpersonal skills to

increase her social confidence. (Tr. 363). Mental status examination revealed an anxious and

depressed mood, expansive affect, poor/unwashed and disheveled appearance, fair judgment and

concentration, steady eye contact, and a participatory attitude. (Tr. 364).

On November 19, 2019, Ms. Smith informed Ms. Gutbrod she was experiencing higher

levels of depression and obsessive thinking about being trapped or hopeless in her life

circumstances. (Tr. 367). On mental status examination, Ms. Smith was depressed and anxious

with a flat and expansive affect, was unwashed and disheveled, resistant to treatment, and

displayed poor judgment, concentration, and eye contact. (Tr. 368). Ms. Gutbrod noted Ms. Smith

was not oriented, commenting that Ms. Smith was “struggling with loss of future thinking, and

detachment from sense of self.” (Id.).

At a counseling session with Ms. Gutbrod on December 5, 2019, Ms. Smith presented as

depressed and anxious with a sad and angry affect, had an unwashed and disheveled appearance,

displayed fair concentration and judgment, maintained broken eye contact, and participated

cooperatively in the session. (Tr. 372). During the session, Ms. Gutbrod challenged Ms. Smith to

“continue to take next steps in independence and gaining skills for adulthood.” (Id.).

On December 19, 2019, Ms. Smith met with Ms. Gutbrod for counseling and expressed

being angry with her family and feeling like a moody, angry teenager. (Tr. 375). Ms. Smith was

depressed and anxious with an appropriate and angry affect, displayed appropriate grooming,

showed good concentration and judgment, and participated cooperatively in the session. (Tr. 376).

On January 9, 2020, Ms. Smith reported to Ms. Gutbrod that she went on her first date

and described feeling grief around the anniversary of her brother’s death. (Tr. 379). Ms. Smith was

anxious with a sad and expansive affect, was appropriately groomed, and displayed good judgment

and concentration. (Tr. 380).

During a counseling session on January 21, 2020, Ms. Smith described and processed grief

relative to family deaths and explored her new relationship. (Tr. 383). She presented as depressed

and anxious with an appropriate affect, was appropriately groomed, displayed good judgment and

concentration, and participated cooperatively during the session. (Tr. 384).

On February 24, 2020, Ms. Gutbrod noted Ms. Smith was anxious, angry, expansive, and

apathetic with an unwashed appearance, displayed fair judgement and good concentration, and

participated cooperatively during the session. (Tr. 388).

On March 10, 2020, Ms. Smith was depressed, irritated, and anxious with an appropriate

affect. (Tr. 392). She was appropriately groomed and cooperative, displayed good judgment and

concentration, maintained steady eye contact, and was cooperative. (Tr. 392-93).

On March 24, 2020, Ms. Smith reported struggling to manage her anxiety around COVID-

19. (Tr. 395). During the session, Ms. Gutbrod noted Ms. Smith “was able to validate herself and

calm herself down with a more peaceful perspective.” (Tr. 396). Ms. Smith presented as depressed

and anxious, had an appropriate affect, was appropriately groomed, displayed good judgment and

concentration, and was cooperative. (Id.).

On April 7, 2020, Ms. Smith met with Ms. Gutbrod via telehealth and reported

experiencing increased alienation, depression, and social pressure since the pandemic began. (Tr.

400). Ms. Gutbrod described Ms. Smith as depressed, irritated, and anxious, with an angry affect

and disheveled appearance. (Id.). Ms. Smith was distracted and displayed poor judgment, fair

concentration, and broken eye contact. (Tr. 400-01).

Ms. Smith attended another telehealth counseling session with Ms. Gutbrod on April 21,

2020, where she reported poor self-care and hygiene for a week and a lack of internal motivation.

(Tr. 404). Mental status examination revealed a depressed mood with an angry, apathetic, and

blunted affect, poor hygiene and disheveled appearance, impaired judgment, fair concentration,

and steady eye contact. (Tr. 404-05). Ms. Smith participated cooperatively during the session. (Tr.

405).

On April 24, 2020, Ms. Smith met with Nurse McDonagh in a telehealth session. (Tr.

287). Ms. Smith reported increased anxiety and depression two to three days a week due to the

COVID-19 situation but described the symptoms as mild. (Id.). She denied medication side effects,

described sleeping ten hours in duration, and reported normal appetite, variable energy, and fine

concentration. (Tr. 288). She additionally described “okay” relationships with family but feelings

of awkwardness around others. (Id.). Mental status examination revealed a mildly depressed and

anxious mood, casually dressed appearance, cooperative attitude, normal eye contact with a calm,

blunted expression, normal attention and concentration, clear speech that was coherent and goal-

directed, logical thought process, non-delusional thought content, and intact insight and

judgment. (Tr. 288-89). Nurse McDonagh concluded: “[Patient] had been functioning well prior to

COVID-19. Social isolation triggered mild anxiety and depressive symptoms lasting a few days a

week. [Patient] does not wish to adjust medications at this time.” (Tr. 289). The nurse instructed

Ms. Smith to continue her medications as prescribed, continue with counseling, increase exercise,

consume healthy food, and follow up in six months. (Id.).

On May 5, 2020, Ms. Smith attended a telehealth appointment with Ms. Gutbrod and

presented as depressed and anxious with a sad and apathetic mood. (Tr. 408). She was disheveled,

resistant to treatment, and displayed impaired judgment, fair concentration, and poor eye contact.

(Tr. 408-09).

On May 21, 2020, during a telehealth counseling session, Ms. Smith reported struggling

with family relationships. (Tr. 412). Mental status examination revealed a depressed and anxious

mood, apathetic and blunted affect, appropriate appearance, impaired judgment, fair

concentration, and steady eye contact. (Tr. 412-13). Ms. Gutbrod described Ms. Smith as

participatory in the session. (Tr. 412).

On June 9, 2020, Ms. Smith attended a counseling session with Ms. Gutbrod at the

Emerge Ministries, Inc. office. (Tr. 414). Mental status examination revealed a depressed and

anxious mood, apathetic and expansive affect, an unwashed and disheveled appearance, impaired

judgment, fair concentration, and poor eye contact. (Tr. 416-17). Ms. Smith was described as

distracted and resistant. (Tr. 416).

On June 23, 2020, Ms. Gutbrod noted Ms. Smith was depressed, manic, and anxious with

an expansive and intense affect. (Tr. 421). Ms. Smith was unwashed and disheveled, distracted,

and displayed impaired judgment, fair concentration, and poor eye contact. (Tr. 421-22).

On July 7, 2020, Ms. Smith attended another in-office counseling session with Ms.

Gutbrod. (Tr. 423). Mental status examination revealed a depressed and anxious mood with an

apathetic affect, an unwashed and disheveled appearance, impaired judgment, fair concentration,

steady eye contact, and participatory behavior. (Tr. 425-26).

On July 27, 2020, Ms. Smith presented as irritated and anxious with an angry, apathetic,

and expansive affect. (Tr. 429). She was disheveled and unwashed, distracted, and displayed fair

judgment and concentration. (Tr. 429-30).

On August 11, 2020, Ms. Smith described feeling overwhelmed and reported a fear of

vulnerability. (Tr. 433). She presented much the same as at the prior counseling session on July 27,

but was participatory rather than distracted and maintained steady eye contact. (Tr. 433-34). Ms.

Gutbrod instructed Ms. Smith to practice social skills. (Tr. 433). On August 26, Ms. Gutbrod

noted Ms. Smith was depressed, irritated, and anxious with an angry and frustrated affect. (Tr.

437). She was unwashed and disheveled, distracted, and displayed fair judgment and

concentration. (Tr. 437-38).

On September 8, 2020, Ms. Smith reported to Ms. Gutbrod that she has taken steps to

better manage her loneliness and social isolation by becoming more active in the streaming world

and being a moderator for a site. (Tr. 440). Mental status examination revealed a depressed and

anxious mood, appropriate affect and grooming, fair judgment, good concentration, steady eye

contact, and participatory cooperation. (Tr. 441). She presented as largely the same, albeit with a

disheveled appearance, on September 22, 2020. (Tr. 445).

On October 5, 2020, Ms. Smith and Ms. Gutbrod discussed managing anxiety and distress.

(Tr. 448). Mental status examination revealed a depressed, anxious, and irritated mood, angry and

expansive affect, disheveled appearance, distraction, impaired judgment, fair concentration, and

steady eye contact. (Tr. 449).

On October 19, 2020, Ms. Smith reported to Ms. Gutbrod that she becomes upset with

change and needs to process and adjust to changes. (Tr. 453). Ms. Smith presented as depressed

and anxious with an angry and apathetic affect and displayed appropriate grooming, good

judgment, fair concentration, steady eye contact. (Id.).

On November 17, 2020, Ms. Smith and Ms. Gutbrod worked on social and emotional

skills, self-awareness, and emotional regulation. (Tr. 456). Mental status examination revealed a

depressed and anxious mood with a sad, tearful, and apathetic affect. (Tr. 457). Ms. Smith was

disheveled and poorly groomed, displayed poor judgment and fair concentration, and maintained

broken eye contact. (Id.).

On December 11, 2020, Ms. Smith had another telehealth appointment with Nurse

McDonagh. (Tr. 291-94). She reported her depression and anxiety were under control and she was

coping with the pandemic by making baby blankets, reading the Bible, completing daily tasks using

a planner, talking with friends online, and seeing one friend in person on rare occasions. (Tr. 291).

Ms. Smith denied medication side effects, described normal sleep habits, appetite, energy, and

concentration, and described “fine” interpersonal relationships while working two days a week at a

consignment shop. (Tr. 292). Ms. Smith reported an “ok” mood, and a mental status examination

otherwise revealed a consistent affect, casually dressed appearance, cooperative attitude, calm

behavior with normal eye contact, normal attention and concentration, clear speech and talkative,

logical and organized thought process, normal thought content, good insight and judgment, and

intact problem-solving abilities. (Tr. 292). Nurse McDonagh instructed Ms. Smith to continue her

medications and counseling, exercise, practice mindful eating, and follow up in three to six

months. (Tr. 293).

On December 14, 2020, Ms. Smith met with Ms. Gutbrod and discussed self-care and her

emotional connection with food. (Tr. 461). Ms. Smith presented as depressed with an angry and

flat affect. (Id.). She was disheveled and poorly groomed, displayed fair concentration and impaired

judgment, and maintained broken eye contact. (Id.). On December 28, 2020, Ms. Smith and Ms.

Gutbrod discussed grief, social isolation, and Ms. Smith’s lack of self-esteem and self-motivation.

(Tr. 464). She presented similarly as at the previous counseling session. (Tr. 465).

On January 26, 2021, Ms. Smith and her parents attended a counseling session with Ms.

Gutbrod and discussed Ms. Smith’s desire to be more independent, challenged more, and

recognized for the growth she has worked towards. (Tr. 468). Mental state examination revealed an

anxious mood, appropriate affect, appropriate grooming, good judgment and concentration,

steady eye contact, and participatory cooperation. (Tr. 469).

On February 9, 2021, Ms. Smith and Ms. Gutbrod worked on personal boundaries and

explored Ms. Smith’s current dating relationship. (Tr. 472). Ms. Smith presented as depressed and

anxious with an apathetic and blunted affect, unwashed and disheveled, and with impaired

judgment and fair concentration. (Tr. 473). On February 24, 2020, Ms. Smith was depressed and

anxious but with appropriate affect, appropriate grooming, and good concentration and judgment.

(Tr. 477).

On March 10, 2021, Ms. Smith met with Ms. Gutbrod and reported feeling social and

emotional anxiety in her new dating relationship. (Tr. 505). Mental status examination was normal

except Ms. Smith was anxious. (Tr. 506). On March 25, 2021, Ms. Smith presented similarly and

discussed her recent break-up with her boyfriend over divergent religious views. (Tr. 509).

On April 8, 2021, Ms. Smith reported to Ms. Gutbrod that she felt sad about her

supervisor leaving for a new position and needed to adjust to the change in routine. (Tr. 513). Ms.

Smith also discussed seeking a new job opportunity closer to home and with more hours. (Id.).

Mental status examination was largely normal, except Ms. Smith displayed a depressed and anxious

mood. (Tr. 514). On April 21, 2021, Ms. Smith and Ms. Gutbrod discussed increasing distress

tolerance and healthy coping skills. (Tr. 517). Ms. Smith presented similarly to her last counseling

session. (Tr. 518).

On May 6, 2021, Ms. Smith and Ms. Gutbrod discussed the distress Ms. Smith encounters

living with her family and explored healthy communication skills. (Tr. 521). Mental state

examination revealed a depressed and anxious mood, expansive affect, disheveled appearance,

distraction, impaired judgment, and fair concentration. (Tr. 522).

On May 7, 2021, Ms. Smith attended a telehealth appointment with Nurse McDonagh

and reported being “stable for the most part except for PMS” and described having PMS symptoms

one to two days a month. (Tr. 490). She also reported becoming anxious staying at home and

feeling better when she takes walks. (Id.). Ms. Smith denied medication side effects. (Id.). Nurse

McDonagh instructed Ms. Smith to continue her medications, incorporate sleep hygiene practices,

and exercise. (Tr. 491).

On May 18, 2020, Ms. Smith reported high levels of stress after being placed on probation

at work by her new supervisor. (Tr. 525). Mental status examination was largely normal except Ms.

Smith displayed an anxious and depressed mood. (Tr. 526).

On June 3, 2021, Ms. Gutbrod noted Ms. Smith’s hyperfocus on the situation at work with

her supervisor. (Tr. 529). They discussed social skills and solution-focused thinking. (Id.). Ms.

Smith presented as depressed and anxious with a sad, tearful, and angry affect. (Tr. 530). She was

disheveled and displayed fair concentration and judgment but poor eye contact. (Id.).

On June 15, 2021, Ms. Smith and Ms. Gutbrod continued to discuss social and emotional

distress and also talked about managing the work situation, giving her resignation, and taking next

steps in seeking employment. (Tr. 533). Mental state examination revealed a depressed and

anxious mood with a sad, apathetic, and blunted affect. (Tr. 534). Judgment and concentration

were intact, and Ms. Smith maintained steady eye contact. (Id.).

On July 8, 2021, Ms. Smith and Ms. Gutbrod focused on managing her distress with

seeking a new job and increasing skills for adjusting to change. (Tr. 537). Ms. Smith reported

working with an agency to find a job placement and explored her fears associated with holding a

job that overwhelms her. (Id.). Mental status examination was normal except Ms. Smith’s mood

was anxious and depressed. (Tr. 538).

III. MEDICAL OPINIONS

On January 20, 2021, State agency psychological consultant Jaime Lai, Psy.D., reviewed the

residual functional capacity (RFC) established in 2018, Ms. Smith’s Function Report, one

treatment note from Cornerstone dated December 11, 2020, the results of one psychological

assessment conducted in February 2019, and one treatment note from her family physician. (Tr.

93-94). Based on the psychologist’s review, Dr. Lai concluded Ms. Smith was moderately limited in

her abilities to understand, remember, and apply information; interact with others; concentrate,

persist, or maintain pace; and adapt or manage herself. (Tr. 94). Dr. Lai adopted the prior ALJ’s

RFC in the decision dated October 11, 2018. (Tr. 96).

On April 3, 2021, another state agency mental health consultant, Irma Johnston, Psy.D.,

reviewed Ms. Smith’s claim on reconsideration and affirmed Dr. Lai’s adoption of the 2018 RFC.

(Tr. 100-04). I note here that Dr. Johnston’s analysis of the evidence consisted of her review of

three treatment notes from counseling sessions, all dated in 2019, and one treatment note from

her family physician. (Tr. 100).

The ALJ evaluated these opinions and determined:

The State agency [consultants’] findings are persuasive because they provided

pointed reviews of the relevant medical evidence, including the normal clinical

observations made by the claimant’s psychiatrist at the December 2020

telemedicine visit (e.g., intact ability to focus attention and concentrate) along with

subjective reports of depression and anxiety being “under control” and even coping

“fairly well”” with the Pandemic and keeping herself busy, the February 2019

psychological evaluation done by Dr. Miller, and several 2019 counseling notes

from Emerge Ministries that[sic]. Complementing such supportability of their

findings from the available medical evidence, the expanded record at the hearing

level of this application bears out an overall consistency of their findings of no

material change in the functionally limiting effects of the claimant’s mental health

impairments since the time of the prior ALJ decision. In example, the May 2021

(and only additional) psychiatric follow-up note still shows primarily stable

depression and anxiety, coping with symptoms well when they occur, having no

side effects of her two medications, seeing some friends occasionally, continuing to

work two days per week, and at most endorsing difficulty wearing a facial mask due

to feeling dizzy and fear of hyperventilating. The March 2021-July 2021 counseling

notes from Emerge Ministries also show that the State agency [consultants’]

findings remain consistent with the total medical record, as they predominantly

show appropriate affect and appearance/grooming, participatory cooperation, good

judgment, good concentration, and steady eye contact; do discuss the events of the

new supervisor leading to problems at her job, and ultimately deciding to resign,

but also indicate that she has been looking for another job and obtained an

interview with the help of the county agency; and generally show no significant

decline in functioning over the current year. The overall persuasiveness of the State

agency [consultants’] findings is bolstered by their ability to review the different

medical sources’ reports as a cohesive and longitudinal whole and by their

familiarity and expertise with Social Security program regulations for evaluating

medical evidence and other factors when arriving at a finding of a residual

functional capacity, which in this case includes the specially applicable Drummond

AR.

(Tr. 33).

On July 28, 2021, Ms. Gutbrod completed an RFC assessment, which was co-signed by

David A. Lichi, Ph.D., and opined Ms. Smith can handle little change in the work environment

and is limited to simple, routine, and repetitive tasks; low stress work; work that does not require

strict production quotas; and can be responsible for the health, safety, and welfare of others. (Tr.

494). Ms. Gutbrod determined Ms. Smith could not engage in work involving confrontation,

arbitration, or negotiation; strict time limits for completing tasks; the supervision of others; or

travel for work. (Id.). She opined Ms. Smith could maintain superficial interaction with the public,

occasional interaction with coworkers, and frequent interaction with supervisors. (Id.). She also felt

Ms. Smith has issues with responding appropriately to regular work criticism and would require

extra reminders or assistance on a weekly or daily basis to properly perform work tasks. (Id.). Ms.

Gutbrod also stated “[Ms. Smith] presents with a low threshold for distress, change, public

interaction or perceived pressure that is time limited. She will cry, hold [her] head, hit her head,

flail, moan, or use other movements to soothe and regulate.” (Id.). Otherwise, Ms. Gutbrod

concluded Ms. Smith would be absent once a month on account of her impairments and noted

“she is consistent if the task is manageable.” (Tr. 498). Ms. Gutbrod also determined Ms. Smith

would be off-task 10-15% of the day. (Id.). Finally, in the four broad areas of mental functioning,

Ms. Gutbrod opined Ms. Smith was markedly or extremely limited. (Tr. 495-97).

The ALJ evaluated this opinion and determined:

The July 2021 opinion from the claimant’s longstanding counselor is not

persuasive except as to the positive abilities to complete simple, routine, repetitive

tasks with no strict production quotas or strict time limits, occasional ability to

interact with coworkers, and reduced ability to handle stress and changes in a work

setting. The ratings of marked to extreme limitations in the broad areas of mental

functioning, expected time off task, and cited need for weekly to daily reminders or

extra assistance in order to perform even simple, routine work tasks properly are

poorly supported by her limited rationale that unduly and overly broadly sweeps

over far too many less remarkable counseling notes that she has written over the

past three years. That is, Ms. Gutbrod wrote that the claimant “presents with a low

threshold for distress, changes, public interaction, or perceived pressure that is time

limited…she will cry, hold [her] head, hit her head, flail, moan or use other

movements to soothe & regulate.” At no point over the last few years of counseling

notes has Ms. Gutbrod documented observations of such behavior from the

claimant, and none appear to report this as a frequently or otherwise regularly

occurring issue of an inappropriate response to stress. Moreover, many of the 2021

counseling notes show improvement in clinical observations as to concentration,

eye contact, appearance, affect, and behavior, which do not support the marked to

extreme limitations and other aspects of her opinion. In addition to these

significant shortcomings in supportability, the counselor’s opinion is not consistent

with the other medical evidence in the record, including especially the quite

unremarkable psychiatric progress notes from Nurse McDonagh at Cornerstone

that show at most mildly anxious and mildly depressed mood at the onset of the

COVID-19 Pandemic, positive coping skills used to successfully respond to

stressors relating to the Pandemic and beyond, intact ability to attend and

concentrate, and stable and conservative medication regimen over the past three

years (and longer) through Buspar and Prozac.

(Tr. 34).

IV. OTHER RELEVANT EVIDENCE

Ms. Smith completed a Function Report, dated December 28, 2020, detailing how her

conditions limit her activities. (Tr. 233-240). She cited communication errors, poor stress

management, and slower pace as reasons for her inability to work. (Tr. 233). On a typical day, Ms.

Smith wakes up, eats breakfast, does chores, plays video games, eats lunch and dinner, helps with

cleanup after dinner, attends to more tasks in between meals, and talks with friends. (Tr. 234). Ms.

Smith reported no problem caring for her personal hygiene but stated she needs written and verbal

reminders for “some things.” (Tr. 235). She is able to prepare her own food, clean, do laundry,

wash dishes, sweep, mow, dust, rake, shovel snow, and pull weeds. (Id.). She endorsed “sometimes”

needing questions answered. (Id.).

Ms. Smith can shop for herself, pay bills, count change, handle a savings account, and use a

checkbook. (Tr. 236). Her hobbies include watching television, playing video games, art, and

spending time with friends. (Tr. 237). She spends time with others, both online and in-person, and

regularly goes to church, the workplace, grocery store, counseling office, and friends’ houses. (Id.).

She reported “sometimes” being worried about doing certain things alone and needs someone to

accompany her. (Id.). She endorsed having problems getting along with others because she “seem[s]

to make people upset without realizing [it].” Otherwise, Ms. Smith claimed difficulty with paying

attention to verbal instructions, becoming distracted easily, misunderstanding what other people

are trying to communicate, and forgetting what she has been told such that she needs to write it

down. (Tr. 238). She sometimes cannot pay attention for too long because she “zone[s] out a lot.”

(Id.). Ms. Smith can follow written instructions well, though she sometimes needs to ask questions,

but does not follow verbal instructions well. (Id.). She also endorsed feeling easily overwhelmed,

getting upset with changes in routine, and feeling as though people are staring at her. (Tr. 239).

V. ADMINISTRATIVE HEARING

On July 20, 2021, Ms. Smith and VE Brett Salkin testified before the ALJ. (Tr. 44-67).

Ms. Smith, born in 1994, lives with her parents and fifteen-year-old brother. (Tr. 50). She

has Asperger’s (autism spectrum disorder), anxiety, and depression. (Tr. 47-48). She takes

medication for anxiety and depression, which she described as making a “marked difference” for

the better. (Tr. 60) (“I don’t feel anxious like as often. It is kind of like it is still there but it more

calms down.”). Ms. Smith spends several hours a day on social media talking to people and playing

games online. (Tr. 54-55). She described becoming confused sometimes when playing online games

that require teamwork and needing to ask questions of her teammates. (Tr. 61). When visiting

with friends in person, they watch movies, play games, talk, share a meal, or occasionally go for a

hike. (Tr. 56). Other hobbies include drawing, painting, working on craft projects, making baby

blankets, playing games with family and friends, and singing. (Id.). Ms. Smith sang in the church

choir until the pandemic began. (Tr. 57).

Ms. Smith does not have her driver’s license and relies on family and friends for rides. (Tr.

55). She has her temporary license and has slowly become more comfortable with driving. (Tr. 57).

At the hearing, she expressed feeling confident enough try to driver’s test soon. (Tr. 57-58).

Ms. Smith explained she is unable to work a full-time job because she struggles with staying

on task, maintaining a fast enough pace, and communicating effectively with coworkers. (Tr. 52).

She described becoming easily confused with instruction. (Id.). She used to work at a second-hand

boutique as a store clerk under the supervision of Medina Creative Accessibility, which offers

supported work environments for individuals with disabilities. (Tr. 51). She quit the position

because she “had some issues with some of the people at work.” (Tr. 51-52). Ms. Smith explained

that her new supervisor confronted her about not doing certain tasks properly and forgetting

things all the time. (Tr. 58). The confrontation “went south” when Ms. Smith expressed feeling

overwhelmed, which caused her supervisor to get upset with her. (Id.). She explained to the ALJ

that she can avoid making mistakes at work if the tasks are routine, straight forward, and she can

ask questions of her supervisor. (Tr. 60).

The ALJ asked VE Salkin if a hypothetical individual of Ms. Smith’s age, education, and

experience could perform work at any exertional level if limited to performing simple and routine

tasks in a setting free of fast-paced production requirements or strict production quotes, in a

routine environment with few changes in workplace tasks and duties; occasional interaction with

coworkers and supervisors; and no interaction with the general public. (Tr. 63). The VE identified

three medium exertion, unskilled SVP 2 positions such an individual could perform:

 Groundskeeper (DOT 406.687-010; 180,000 jobs nationally);

 Cleaner (DOT 323.687-010; 306,000 jobs nationally); and

 Laundry worker (DOT 361.684-014; 65,000 jobs nationally).

(Tr. 64).

Counsel for Ms. Smith asked the VE if an employee could maintain competitive

employment if she required additional weekly reminders about her duties. (Tr. 65). VE Salkin

stated that weekly reminders are not unusual, especially for unskilled work; however, it would be

considered supportive employment or an accommodation if she needed more reminders than

other people customarily require. (Id.).

Otherwise, the VE testified an employer tolerates an employee being off task no more than

10% of the workday and absent, including late arrivals to and early departures from work, no more

than once per month. (Tr. 65).

THE ALJ’S DECISION

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

1. The claimant has not engaged in substantial gainful activity since June 20,

2020, the date on which the application was filed (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairment: autism spectrum

disorder, major depressive disorder with anxious distress, and generalized

and social anxiety disorders (20 CFR 416.920(c)).

3. 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 416.920(d), 416.925,

and 416.926).

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

the claimant has the residual functional capacity to perform a full range of

work at all exertional levels but with the following nonexertional

limitations: She can perform simple, routine tasks in a setting free of fast-

paced production requirements and strict production quotas, and which is

routine in that it contemplates few changes in workplace tasks or duties;

and she can have occasional interaction with coworkers and supervisors, but

no interaction with the general public.

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on September 18, 1994, and was 25 years old, which

is defined as a younger individual age 18-49, on the date the application was

filed (20 CFR and 416.963).

7. The claimant has at least a high school education (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant does not

have past relevant work (20 CFR 416.968)

9. Considering the claimant’s age, education, no 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 416.969,

and 416.969a).

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

Security Act, since June 20, 2020, the date on which the application was

filed (20 CFR 416.920(g)).

(Tr. 18-36).

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. § 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. § 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. § 416.920(b)-(f); see

also Walters, 127 F.3d at 529.

DISCUSSION

Ms. Smith claims the unfavorable decision is not supported by substantial evidence because

the ALJ’s findings related to the persuasiveness of the medical opinions are flawed. (Pl.’s Br., ECF

#10, PageID 578). For the reasons that follow, I reject this argument and thus AFFIRM the ALJ’s

decision.

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 his 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 Ms. Smith filed her applications after March 27, 2017, the medical opinions are

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

the ALJ is to articulate “how persuasive [she] find[s] all of the medical opinions and all of the prior

administrative medical findings in [the] case record.” Id. at § 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. §§ 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. § 416.920c(a). An ALJ must explain how she

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.

§§ 416.920c(b)(2)-(3).

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).

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).

A. Ms. Gutbrod’s Opinion

1. Supportability

Ms. Smith first takes umbrage with the ALJ’s supportability finding, noting “[t]he ALJ

confusingly claimed that Ms. Gutbrod’s own notes did not document observations of abnormal

behavior, but then claimed, ‘none appear to report this as a frequently or otherwise regularly

occurring issue of an inappropriate response to stress.’” (Id. at PageID 578-79). Ms. Smith appears

to misunderstand the focus of the ALJ’s supportability analysis.

The ALJ found that Ms. Gutbrod’s statement about Ms. Smith “holding her head, hitting

[her] head, flailing, moaning, or using other movements to soothe and regulate” herself was not

supported by Ms. Gutbrod’s own counseling notes. (Tr. 34). Nowhere in the written decision does

the ALJ claim Ms. Gutbrod did not document abnormal findings, only that she did not document

the specific soothing and regulating behaviors she cited to support her opinion. Substantial

evidence supports the ALJ’s logical conclusion here because not a single counseling note, or any

other medical treatment note, references observations of such self-soothing, self-regulating

behavior. Moreover, as the ALJ emphasized, the counseling and other treatment notes are devoid

of any reference to Ms. Smith reporting such behavior to Ms. Gutbrod.

Ms. Smith also claims the ALJ did not provide specific references or citations to support

her statement regarding “far less remarkable counseling notes.” Not so. Reading the ALJ’s decision

as a whole and with common sense, there are specific references to treatment notes reflecting less

remarkable clinical findings. As an example, the ALJ noted as follows:

However, at least over half of the counseling sessions reflect less remarkable

clinically observed problems in behavior (cooperative and “participatory”),

judgment (fair to good), concentration (fair to good), eye contact (steady), affect

(appropriate), and attention shown to personal grooming and appearance

(appropriate).

(Tr. 29) (internal citations omitted); 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).

Next, Ms. Smith takes issue with the ALJ’s statement that many of the 2021 counseling

notes showed improvement in clinical observations as to concentration, eye contact, appearance,

affect, and behavior; Ms. Smith claims “not a single record shows improvement in her conditions

or behavior.” (ECF #10 at PageID 581).

The Sixth Circuit recognizes that “improvement” in the level of mental functioning is a

relative concept and is dependent on the base level from which the improvement is measured:

Even if [a doctor’s] use of the word “better” referred to Plaintiff’s mood, this word

did not provide the ALJ with substantial evidence from which to find that

Plaintiff’s mental impairment had subsided. The ALJ made no inquiry into the

degree of improvement, or from what baseline Plaintiff improved. Under the ALJ’s

logic, any improvement in one’s mood, regardless of how small and from what level

the individual improved, would defeat a claim of mental impairment. This cannot

be so.

Boulis-Gasche v. Comm’r of Soc. Sec. 451 F. App’x 488, 494 (6th Cir. 2011). To the extent the ALJ

relied on Ms. Smith’s improvement to discount Ms. Gutbrod’s opinion, the ALJ’s reasoning is not

supported by substantial evidence. As described above, the longitudinal record, considered

chronologically, shows the clinical findings of mental status examinations varied considerably over

time, and the ALJ did not cite findings or evidence to show the baseline from which Ms. Smith

improved, or the degree of improvement. However, such error is harmless because the ALJ’s

decision was also based on the less remarkable clinical findings and the fact that Ms. Gutbrod’s

rationale regarding self-regulating, self-soothing behaviors is not supported by any observation or

report in her counseling notes; as discussed above, both conclusions are supported by substantial

evidence of record.

2. Consistency

As to the consistency factor, Ms. Smith does not claim the ALJ did not evaluate the

consistency of Ms. Gutbrod’s opinions with other evidence in the record. Plainly, the ALJ

compared Ms. Gutbrod’s opinions with the four altogether benign psychiatric progress notes from

Nurse Donagh. (See Tr. 34). Instead, Ms. Smith claims “Ms.[sic] Donagh’s notes are clearly inferior

to Ms. Gutbrod’s based upon length of treatment, time spent, and in the quality and detail of the

notes taken. There is no real comparison to the consistency factor, as Ms. Gutbrod’s examinations

dominate the [the administrative transcript] with 81% of the medical records (177 of 217 pages).”

(ECF #10 at PageID 583). Ms. Smith’s argument here is but a request to re-weigh the evidence in a

manner consistent with her preferred outcome, something this Court cannot do. See Brainard, 889

F.2d at 681. Moreover, while frequency of treatment is a factor for the ALJ to consider when

evaluating medical opinions, see 20 C.F.R. § 416.920c(c)(3), the ALJ is not required to articulate

how she considered this factor unless she found the two opinions equally persuasive after

evaluating them for consistency and supportability. See 20 C.F.R. §§ 416.920c(b)(2)-(3).

Moreover, the ALJ’s consistency evaluation is not lacking the support of substantial

evidence simply because of the disparity in the frequency of treatment between Ms. Gutbrod and

Nurse Donagh. Even if, as Ms. Smith claims, substantial evidence supports a finding that Ms.

Gutbrod’s opinion is persuasive, I cannot overturn the ALJ’s conclusion because substantial

evidence, in the form of Nurse Donagh’s benign clinical findings and conservative medication

regimen, supports her finding that Ms. Gutbrod’s opinion is inconsistent with other substantial

evidence of record. See Jones, 336 F.3d at 477.

B. State Agency Consultants’ Opinions

According to Ms. Smith, “the ALJ’s favorable finding on the factor of supportability is

misplaced because the state agency physicians have no other records to compare for

supportability,” and the ALJ’s entire reasoning “actually falls within the consistency factor.” (ECF

#10 at PageID 584). This argument is flawed; supportability, in the context of reviewing State

agency opinions, looks to the basis of the State agency opinions. See Mary W. v. Comm’r of Soc. Sec.,

No. 2:20-cv-5523, 2022 WL 202764, at *10 (S.D. Ohio Jan. 24, 2022), report and recommendation

adopted, 2022 WL 394627 (S.D. Ohio Feb. 9, 2022). Next, Ms. Smith claims the ALJ was

“blatantly incorrect” in claiming that both State agency consultants reviewed “several 2019

counseling notes.” (Id.). Contrary to her assertion, the ALJ did not claim both State agency

consultants reviewed those records; rather, the ALJ analyzed their opinions together and provided

a single list of the medical evidence upon which the State agency consultants based their opinions.

(Tr. 33).

Ms. Smith next attacks the “quality” of Dr. Johnston’s review, emphasizing the reviewing

State agency psychologist only cited three of thirty-four counseling notes, and takes issue with the

fact that Dr. Johnson’s summary “barely discussed the abnormal objective findings contained in

the record.” (ECF #10 at PageID 584).

True, on reconsideration, Dr. Johnson did not provide a summary of the counseling notes

post-dating December 19, 2019; however, the Sixth Circuit holds that an ALJ may rely on medical

opinions from physicians who have not reviewed the entire record so long as the ALJ considers the

post-dated evidence in formulating his opinion. See, e.g., McGrew v. Comm’r of Soc. Sec., 343 F.

App’x 26, 32 (6th Cir. 2009) (indicating that an ALJ’s reliance upon state agency reviewing

physicians’ opinions that were outdated was not error where the ALJ considered the evidence that

was developed post-dating those opinions); see also Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 513

(6th Cir. 2013) (“Even if [a State agency physician’s] RFC was completed without knowledge of

these issues, however, the record reflects that the ALJ considered them.”); Patterson v. Comm’r of

Soc. Sec., No. 1:16-cv-110, 2017 WL 914272, at *10 (N.D. Ohio Mar. 8, 2017) (“An ALJ may rely

on a state agency reviewer who did not review the entire record, so long as the ALJ also considers

the evidence post-dating the opinion.”). Where a non-examining source does not review a

complete case record, “we require some indication that the ALJ at least considered these facts

before giving greater weight to an opinion” from the non-reviewing source. Blakely v. Comm’r of Soc.

Sec., 581 F.3d 399, 409 (6th Cir. 2009),

Here, the ALJ satisfied this requirement. Within the ALJ’s evaluation of the State agency

medical opinions, she acknowledged they did not review the full case record. (See Tr. 33). Though

the State agency consultants did not review a complete case record, the ALJ’s own analysis clearly

spanned the entire record, including all the counseling notes. (See Tr. 28-30). In particular, the ALJ

noted:

Ultimately, the counseling notes in 2019-2021 from Emerge Industries do support

at least stable and ongoing symptoms and limiting effects from Asperger’s disorder,

social anxiety disorder, and depressive disorder, with some instances suggesting

improvement or at least less significant symptoms impacting daily activities, but fail

to show any “material” worsening or more restrictive impact on the claimant’s

mental work-related abilities since the time of the October 2018 prior ALJ’s

decision.

(Tr. 29).

On this record, the ALJ’s evaluation of the persuasiveness of the State agency consultants’

opinions is supported by substantial evidence.

CONCLUSION

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

AFFIRM the Commissioner’s decision denying supplemental security income.

Dated: September 7, 2023

} | }

DARRELL A. CLAY

UNITED STATES MAGISTRATE JUDGE

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