The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KELLY E. TESTER KOPEC, CASE NO. 1:23-cv-680
Plaintiff,
vs. MAGISTRATE JUDGE
JAMES E. GRIMES JR.
COMMISSIONER OF SOCIAL
SECURITY,
MEMORANDUM OPINION
Defendant. AND ORDER
Plaintiff Kelly Tester Kopec filed a Complaint against the Commissioner
of Social Security seeking judicial review of the Commissioner’s decision
denying Supplemental Security Income. This Court has jurisdiction under 42
U.S.C. §§ 405(g) and 1383(c). The parties consented to my jurisdiction in this
case. Doc. 9. Following review, and for the reasons stated below, I vacate and
remand the Commissioner’s decision.
Procedural history
In July 2020, Kopec filed an application for Supplemental Security
Income alleging a disability onset date of July 23, 2020,1 and claiming she was
1 “Once a finding of disability is made, the [agency] must determine the
onset date of the disability.” McClanahan v. Comm’r of Soc. Sec., 193 F. App’x
422, 425 (6th Cir. 2006).
disabled due to hearing loss in both ears, cholesteatoma2 inside her left ear,
progressive arthritis, thyroid removal, ovarian cysts removal, and left arm
issues. Tr. 15, 177, 195. The Social Security Administration denied Kopec’s
application and her motion for reconsideration. Tr. 75, 82. Kopec then
requested a hearing before an Administrative Law Judge (ALJ). Tr. 108.
In January 2022, an ALJ held a hearing. Kopec and a vocational expert
testified. Tr. 28–68. The next month, the ALJ issued a written decision finding
that Kopec was not disabled. Tr. 15–23. The ALJ’s decision became final on
February 27, 2022, when the Social Security Appeals Council declined further
review. Tr. 1–3; see 20 C.F.R. § 404.981.
Kopec filed this action on March 31, 2023. Doc. 1. She asserts the
following assignment of error:
The ALJ failed to adequately evaluate and sufficiently explain his
analyses of the physical restrictions assessed by James Bircher, D.O.,
who performed a consultative examination for the agency. The decision
violates agency regulations, and the RFC finding in this case is not
supported by substantial evidence.
Doc. 8, at 3.
2 A cholesteatoma is a cyst-like mass or benign tumor that is generally
found in the middle ear. See Dorland’s Illustrated Medical Dictionary 354 (33rd
ed. 2020).
Evidence
Personal and vocational evidence
Kopec was born in 1977 and was 42 years old on the date she filed her
disability application. Tr. 22. She completed eleventh grade and has no past
relevant work. Tr. 22, 196.
Medical evidence3
In August 2020, Kopec went to a doctor complaining of joint pain and
swelling. Tr. 480. Previous testing was negative for rheumatoid factor and
antinuclear antibodies. Tr. 480. Kopec’s extremity exam findings showed
normal strength and range of motion. Tr. 481.
In July 2021, Kopec saw James Bircher, D.O., at the agency’s request
for a consultative exam. Tr. 798. Dr. Bircher listed Kopec’s allegations of
disability, including hearing loss in both ears, left shoulder pain, and low back
pain. Tr. 798. He stated that Kopec “seem[ed] to be a reliable historian.” Tr.
798. Kopec reported that she could sit and stand for “not long,” walk one block,
and lift ten pounds. Tr. 799. On exam, Kopec had difficulty hearing and Dr.
Bircher had to raise his voice. Tr. 801. Kopec had good hand-eye coordination
and normal sensation and reflexes. Tr. 801. She had an unsteady gait and
“required” a cane. Tr. 801. Kopec had no joint swelling or tenderness. Tr. 801.
She could lift, carry, and handle objects with her right hand, but showed
3 The recitation of medical evidence is not intended to be exhaustive and
is limited to the evidence cited in the parties’ briefs.
“limited” left arm function due to left shoulder pain and weakness. Tr. 801. Dr.
Bircher commented that Kopec could “rise from a sitting position with cane
and had mild difficulty getting up and down from the exam table.” Tr. 801. Due
to her left shoulder issues, Kopec needed help taking off or putting on her
sweater. Tr. 801–02.
Dr. Bircher opined that Kopec could sit, stand, and walk and that she
required a cane. Tr. 802, 805. He explained that Kopec had normal strength
and range of motion other than “severely limited left shoulder motion and
strength as documented.” Tr. 802, 804. Dr. Bircher found that Kopec “will have
difficulty” walking for more than an hour, standing for an hour, and lifting
twenty pounds. Tr. 802. Kopec “should be able to sit for an hour.” Tr. 802. Dr.
Bircher reiterated that Kopec had diminished hearing “requiring louder
volumes for conversation.” Tr. 802.
A few days later, Kopec went to her doctor’s office for joint pain and
swelling. Tr. 852. Kopec reported “long-standing” hand and foot pain that made
it difficult to hold a car steering wheel. Tr. 852. She said that it was hard to
walk and she frequently needed to sit. Tr. 852. Kopec’s exam findings showed
full range of motion and normal strength in her extremities. Tr. 853. X-rays of
Kopec’s ankles and hands were unremarkable. Tr. 692, 853.
A week later, Kopec went to an orthopedic clinic for an evaluation of
ankle pain. Tr. 811. She was using a cane “for mobilization.” Tr. 811. On exam,
Kopec had tenderness to palpation of her right ankle and no edema or effusion,
a normal range of motion, and intact sensation. Tr. 813. The doctor advised
Kopec to continue a home exercise program. Tr. 814.
In October 2021, Kopec saw her primary care physician for joint pain
and swelling. Tr. 833. Kopec said that steroids and Meloxicam were ineffective
and that Celebrex worked best. Tr. 833. On exam, Kopec had a full range of
motion and normal strength in her extremities. Tr. 834.
State agency opinions4
In September 2020, Dimitri Teague, M.D., reviewed Kopec’s record and
assessed Kopec’s residual functional capacity (RFC).5 Tr. 78–79. Dr. Teague
opined that Kopec could perform light work—occasionally lift and carry 20
pounds, frequently lift and carry 10 pounds, stand and walk for about six hours
in an eight-hour workday, and sit for about six hours in an eight-hour workday.
Tr. 78–79. Dr. Teague found that Kopec could frequently climb ladders, ropes,
4 When a claimant applies for disability benefits, the State Agency creates
a record. The record includes the claimant’s medical evidence. A State Agency
disability examiner and a State Agency physician or psychologist review the
claimant’s record and determine whether and to what extent the claimant’s
condition affects his or her ability to work. If the State Agency denies the
claimant’s application, the claimant can ask for reconsideration. On
reconsideration, the State Agency updates the record and a second disability
examiner and doctor review the file and make a new determination. See, e.g.,
20 C.F.R. § 404.1615.
5 An RFC is an “‘assessment of’” a claimant’s ability to work, taking his or
her “limitations … into account.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235,
239 (6th Cir. 2002) (quoting 20 C.F.R. § 416.945). Essentially, it’s the SSA’s
“description of what the claimant ‘can and cannot do.’” Webb v. Comm’r of Soc.
Sec., 368 F.3d 629, 631 (6th Cir. 2004) (quoting Howard, 276 F.3d at 239).
and scaffolds and frequently stoop, kneel, crouch and crawl. Tr. 79. He also
found that Kopec was limited to “frequent hearing.” Tr. 79.
In September 2021, Leslie Green, M.D., reviewed Kopec’s record,
including Dr. Bircher’s report. Tr. 83–88. Dr. Green affirmed Dr. Teague’s
findings and added environmental restrictions based on Kopec’s hearing loss.
Tr. 88–89.
Hearing testimony
Kopec, who was represented by counsel, testified at the telephonic
administrative hearing held in January 2022. Kopec confirmed that she had
left ear surgery a year before the hearing to remove a cholesteatoma. Tr. 41.
Her condition hadn’t improved—if anything, it had worsened. Tr. 42. Her
surgeon, now retired, told Kopec that she had eustachian tube collapse. Tr. 42.
Kopec stated that she “just can’t hear very well at all.” Tr. 43. She gets dizzy
and has balance problems. Tr. 43. When she sits or stands up, she has to “go
real slow.” Tr. 44. Kopec hadn’t fallen, but she was “wobbly.” Tr. 44–45.
Kopec stated that she gets headaches, which could occur every other
day. Tr. 45–46. She takes medication, which prevents severe migraines. Tr.
47. Kopec’s headaches also cause light and sound sensitivity and nausea. Tr.
47–48. Kopec takes medication for her nausea, which is also caused by her
dizziness. Tr. 48.
Kopec said that she has arthritis in her hands, ankles, lower back, and
hips. Tr. 49. She has difficulty gripping and holding things. Tr. 49. She has a
50 percent rotator cuff tear in her left shoulder. Tr. 50. She has no strength in
her left arm and can’t reach overhead, in front, or to the side. Tr. 50–51. Kopec
said that she uses a cane, which was not prescribed, for arthritis and dizzy
spells. Tr. 51–52. She stated that her ankles swell and she props her legs up.
Tr. 52.
Kopec said that she also has ankle pain and didn’t think she could walk
a block. Tr. 52. She estimated that she could stand for a couple of minutes. Tr.
53. Kopec can sit for as long as necessary. Tr. 53. She can lift a couple of pounds
using her right arm. Tr. 53. Kopec takes medication, which helps. Tr. 54. She
also has lower back pain. Tr. 55.
The ALJ stated that Kopec had no past relevant work. Tr. 63. The ALJ
asked the vocational expert to determine whether a hypothetical individual
with the same age, education, and work history as Kopec could perform work
if the individual had the limitations assessed in the ALJ’s RFC determination,
described below. Tr. 63–65. The vocational expert answered that such an
individual could perform the following jobs: document preparer, call-out
operator, and telephone quotation clerk. Tr. 65.
The ALJ’s Decision
The ALJ made the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial
gainful activity since July 23, 2020, the application
date (20 CFR 416.971 et seq.).
2. The claimant had the following severe
impairments: unspecified osteoarthritis, irritable
bowel syndrome, left shoulder rotator cuff tear and
impingement syndrome, and conductive hearing loss
(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 sedentary
work as defined in 20 CFR 416.967(a) except she can
reach over overhead occasionally. She can frequently
handle and finger. The claimant can occasionally
balance, stoop, kneel, crouch, crawl, and climb
ramps and stairs. She can never climb ladders,
ropes, or scaffolds. She can have no exposure to
unprotected heights, hazardous machinery, or
commercial driving. She is limited to work
performed in a moderate noise environment,
consistent with an office setting.
5. The claimant has no past relevant work (20 CFR
416.965).
6. The claimant was born [in] … 1977 and was 42
years old, which is defined as a younger individual
age 18–44, on the date the application was filed (20
CFR 416.963).
7. The claimant has a limited 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, 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).
10. The claimant has not been under a disability, as
defined in the Social Security Act, since July 23,
2020, the date the application was filed (20 CFR
416.920(g)).
Tr. 17–23.
Standard for Disability
Eligibility for social security benefit payments depends on the existence
of a disability. 42 U.S.C. §§ 423(a), 1382(a). “Disability” is defined as the
“inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C.
§ 1382c(a)(3)(A).
An ALJ is required to follow a five-step sequential analysis to make a
disability determination:
1. Is the claimant engaged in substantial gainful
activity? If so, the claimant is not disabled.
2. Does the claimant have a medically
determinable impairment, or a combination of
impairments, that is “severe”? If not, the
claimant is not disabled.
3. Does the claimant’s impairment meet or equal
one of the listed impairments and meet the
duration requirement? If so, the claimant is
disabled. If not, the ALJ proceeds to the next
step.
4. What is the claimant’s residual functional
capacity and can the claimant perform past
relevant work? If so, the claimant is not
disabled. If not, the ALJ proceeds to the next
step.
5. Can the claimant do any other work
considering the claimant’s residual functional
capacity, age, education, and work
experience? If so, the claimant is not disabled.
If not, the claimant is disabled.
20 C.F.R. §§ 404.1520, 416.920; see Jordan v. Comm’r of Soc. Sec., 548 F.3d
417, 422 (6th Cir. 2008). Under this sequential analysis, the claimant has the
burden of proof at steps one through four. Jordan, 548 F.3d at 423. The burden
shifts to the Commissioner at step five “to prove the availability of jobs in the
national economy that the claimant is capable of performing.” Id. “The
claimant, however, retains the burden of proving her lack of residual functional
capacity.” Id. If a claimant satisfies each element of the analysis and meets the
duration requirements, the claimant is determined to be disabled. Walters
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
Standard of review
A reviewing court must affirm the Commissioner’s conclusions unless it
determines “that the ALJ has failed to apply the correct legal standards or has
made findings of fact unsupported by substantial evidence in the record.”
Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence’ is a ‘term of art’” under which
“a court … asks whether” the “existing administrative record … contains
‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek
v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted). The substantial
evidence standard “is not high.” Id. Substantial evidence “is ‘more than a mere
scintilla’” but it “means only[] ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id. (citations omitted). The
Commissioner’s “findings … as to any fact if supported by substantial evidence
[are] conclusive.” 42 U.S.C. § 405(g); Biestek, 139 S. Ct. at 1152.
A court may “not try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.
2007). Even if substantial evidence or a preponderance of the evidence
supports a claimant’s position, a reviewing court cannot overturn the
Commissioner’s decision “so long as substantial evidence also supports the
conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
477 (6th Cir. 2003). This is so because there is a “zone of choice within which”
the Commissioner can act, without fear of judicial “interference.” Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (quoting Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)).
Discussion
Kopec argues that the ALJ failed to comply with applicable regulations
when he evaluated Dr. Bircher’s opinion. Doc. 8, at 8. In this regard, the
Commissioner is required to evaluate the persuasiveness of all medical
opinions using the following factors: supportability; consistency; treatment
relationship, including the length, frequency, purpose, and extent;
specialization; and other factors. 20 C.F.R. §§ 416.920c(a), 416.920c(c)(1)-(5).
Supportability and consistency are the most important factors. 20 C.F.R. §
416.920c(a). Supportability means that “[t]he more relevant the objective
medical evidence and supporting explanations presented by a medical source
are to support his or her medical opinion[] … the more persuasive the medical
opinions … will be.” 20 C.F.R. § 416.920c(c)(1). Consistency means “[t]he more
consistent a medical opinion[] … is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the medical
opinion[] … will be.” 20 C.F.R. § 416.920c(c)(2). The Commissioner must
explain the supportability and consistency factors when discussing a medical
opinion. 20 C.F.R. § 416.920c(b)(2). “[A]n ALJ need not,” however, “specifically
use the terms ‘supportability’ or ‘consistency’ in his analysis.” Cormany v.
Kijakazi, No. 5:21-cv-933, 2022 WL 4115232, at *3 (N.D. Ohio Sept. 9, 2022)
(citing cases). The Commissioner is not required to discuss the remaining
factors. Id. “A reviewing court evaluates whether the ALJ properly considered
the factors as set forth in the regulations to determine the persuasiveness of a
medical opinion.” Toennies v. Comm’r of Soc. Sec., 2020 WL 2841379, at *14
(N.D. Ohio June 1, 2020) (internal quotation marks and citation omitted).
The ALJ evaluated Dr. Bircher’s opinion as follows:
The claimant had a medical consultative exam with
James Bircher, D.O., in which the claimant said she
could sit and stand for only short periods, walk one
block, and lift ten pounds (12F/2). She displayed
normal abdomen and neurological functioning
(12F/3). She was unsteady and required a cane but
she had good hand eye coordination (12F/4). She
displayed limited left arm function due to left
shoulder pain and weakness although she had no
joint swelling or tenderness (12F/4). She required
higher volumes for conversation (12F/5).
Dr. Bircher opined that the claimant would have
difficulty walking over one hour, standing for sixty
minutes, and lifting twenty pounds (12F/5). Dr.
Bircher noted that the claimant could sit for an hour
(12F/5). The undersigned finds Dr. Bircher’s opinion
persuasive in general because the record confirmed
that the claimant’s shoulder, arthritis, and hearing
conditions limited her to sedentary work, which
appeared somewhat consistent with Dr. Bircher’s
opinion. However, the treatment notes did not
establish the need for a cane or that she could walk,
stand, or sit for only one hour. Indeed, the treatment
notes failed to document such substantial problems
with being on her feet or sitting. Likewise, the
treatment notes did not document the ongoing need
for a cane or any ambulatory aid. Rather, there was
only one treatment note indicating such usage and a
cane was not prescribed.
Tr. 21.
Kopec argues that the ALJ only discussed the consistency factor and not
the supportability factor. Doc. 8, at 9. The Commissioner says that “[b]y
discussing the findings from Dr. Bircher’s examination and explaining why
some limitations were consistent with the record, while others were not, the
ALJ articulated his consideration of the supportability of Dr. Bircher’s
opinion.” Doc. 12, at 9. And so, the Commissioner concludes, the ALJ complied
with the regulations. Id.
But the supportability and consistency factors are different. Compare 20
C.F.R. § 416.920c(c)(1) (supportability is objective medical evidence and
supporting explanations a doctor uses to support his or her own opinion), with
20 C.F.R. § 416.920c(c)(2) (consistency means whether a medical opinion is
consistent with other evidence in the record). So the ALJ’s explanation about
the inconsistency of Dr. Bircher’s opinion with other evidence in the record
doesn’t fulfill the ALJ’s obligation to explain the supportability factor. See 20
C.F.R. § 404.1520c(b)(2) (the Agency “will explain how we considered the
supportability and consistency factors for a medical source’s medical opinion”)
(emphasis added); Brown v. Comm’r of Soc. Sec., No. 1:21-cv-1042, 2022 WL
2611297, at *10 (N.D. Ohio May 16, 2022) (finding that the ALJ erred by only
discussed the supportability factor and not the consistency factor), report and
recommendation adopted, 2022 WL 2833810 (N.D. Ohio July 20, 2022). And
while the ALJ recited Dr. Bircher’s exam findings when describing Dr.
Bircher’s opinion, Tr. 21, the ALJ didn’t explain how or whether he factored
those exam findings into his evaluation of Dr. Bircher’s opinion.
The Commissioner reiterates that “an ALJ need not specifically use the
terms ‘supportability’ or ‘consistency’ in his analysis.” Doc. 12, at 9–10. That’s
true.6 But here, the issue isn’t whether the ALJ used the magic words
6 See, e.g., Owens v. Comm’r of Soc. Sec., No. 3:20-cv-1737, 2021 WL
8342841, at *6 (N.D. Ohio Sept. 15, 2021) (rejecting the plaintiff’s argument
that the ALJ failed to discuss the supportability factor because the ALJ, while
not using the word supported, stated that the doctor’s opinion relied heavily on
the claimant’s subjective reports of symptoms, which is relevant to the
supportability factor), report and recommendation adopted, 2023 WL 6283030
(N.D. Ohio Sept. 27, 2023); Cormany, 2022 WL 4115232, at *5–6 (the ALJ
complied with the regulations when explaining that the doctor’s opinion was
contrary to the doctor’s own treatment notes and inconsistent with the
claimant’s testimony, even though the ALJ didn’t use the words supportability
and consistency); Marlowe v. Comm’r of Soc. Sec., No. 1:22-cv-1020, 2023 WL
supportability and consistency. Rather, the issue is whether in essence the ALJ
complied with the regulations by explaining these factors when he evaluated
Dr. Bircher’s opinion. And the ALJ only explained the consistency factor when
he found that treatment notes in the record were inconsistent with Dr.
Bircher’s opinion. Tr. 21. The ALJ didn’t explain the supportability factor—
whether and to what extent Dr. Bircher’s opinion was supported by Dr.
Bircher’s own evaluation of Kopec. So this is not a case in which the ALJ
complied with the spirit, if not the letter, of the regulations.
Kopec argues that this error isn’t harmless because “Dr. Bircher’s
restrictions would limit [Kopec] to such a reduced range of sedentary work
that—arguably—all jobs would be eliminated.” Doc. 8, at 12. Notably, the
Commissioner presents no counter argument.7 In any event, an ALJ’s error
evaluating opinion evidence may be harmless in one of three circumstances:
(1) the opinion was “so patently deficient that the Commissioner could not
possibly credit it”; (2) the ALJ’s RFC findings were consistent with the opinion;
or (3) the ALJ “otherwise met the goals of the regulations by indirectly
2541436, at *10 & n.14 (N.D. Ohio Feb. 21, 2023) (“The ALJ discussed the most
important factors—supportability and consistency—when he found that Dr.
Srivastava’s opinion wasn’t supported by Dr. Srivastava’s own treatment notes
and was inconsistent with other treatment notes in the record,” even though
the ALJ didn’t use the word consistent), report and recommendation adopted,
2023 WL 2538901 (N.D. Ohio Mar. 16, 2023).
7 The Commissioner only argues that a different alleged error—one
related to the ALJ’s evaluation of state agency reviewer Dr. Green—was
harmless. Doc. 12, at 12.
attacking the supportability or consistency of the opinion.” Bates v. Comm’r of
Soc. Sec., No. 3:21-cv-1055, 2022 WL 2610519, at *8 (N.D. Ohio May 27, 2022)
(citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) and
Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 440 (6th Cir. 2010)), report
and recommendation adopted, 2022 WL 2916871 (N.D. Ohio July 25, 2022).8
The first two circumstances don’t apply here. As for the third, I am hard-
pressed to find where in the decision the ALJ indirectly assessed the
supportability of Dr. Bircher’s opinion, without inventing reasoning for the
agency. But that would be improper. See SEC v. Chenery Corp., 332 U.S. 194,
196 (1947) (“[A] reviewing court … must judge the propriety of such [decisions]
solely by the grounds invoked by the agency. If those grounds are inadequate
or improper, the court is powerless to affirm the administrative action by
substituting what it considers to be a more adequate or proper basis.”).
Simply put, the ALJ didn’t comply with the regulations, which is
grounds for reversal. See Jordan, 548 F.3d at 422; Brown, 2022 WL 2611297,
at *11.
8 Bates explains that the harmless error analysis described by the Sixth
Circuit applied to the pre-March 27, 2017 regulations for treating source
opinions, but that district courts within this Circuit have applied the analysis
to the post-March 27, 2017 regulations covering opinion evidence. 2022 WL
2610519, at *8 (citing Hickman v. Comm’r of Soc. Sec., No. 2:20-cv-6030, 2021
WL 5176523, at *5 n.4 (S.D. Ohio Nov. 8, 2021), Vaughn v. Comm’r of Soc. Sec.,
No. 20-cv-1119, 2021 WL 3056108, at *11 n.8 (W.D. Tenn. July 20, 2021), and
Burba v. Comm’r of Soc. Sec., No. 1:19-cv-905, 2020 WL 5792621, at *4 (N.D.
Ohio Sept. 29, 2020)).
Because I find that the ALJ erred when evaluating Dr. Bircher’s opinion,
there is no need to address Kopec’s other argument—that Dr. Green’s opinion
was internally inconsistent such that the ALJ’s partial reliance on Dr. Green’s
opinion was faulty. Doc. 8, at 9–10. It’s not clear that Dr. Green’s opinion was
internally inconsistent. And even if it was, it’s unclear how that alleged
internal inconsistency would amount to error or, if error, how that error was
harmful. Nevertheless, on remand, the ALJ will have an opportunity to
reevaluate Dr. Green’s and Dr. Bircher’s opinions.
Conclusion
For the reasons explained above, the Commissioner’s decision is vacated
and remanded for proceedings consistent with this opinion.
Dated: October 20, 2023
/s/ James E. Grimes Jr.
James E. Grimes Jr.
U.S. Magistrate Judge