Harris v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RUIE E. HARRIS,

Plaintiff,

v. Civil Action 2:20-cv-4356

Judge Edmund A. Sargus, Jr.

Magistrate Judge Chelsey M. Vascura

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Ruie E. Harris (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for

review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her

application for Period of Disability, Disability Insurance, and Supplemental Security Income

Benefits. This matter is before the Court on Plaintiff’s Statement of Errors (ECF No. 18), the

Commissioner’s Memorandum in Opposition (ECF No. 19), and the administrative record (ECF

No. 13). For the reasons that follow, it is RECOMMENDED that Plaintiff’s Statement of

Errors be OVERRULED and that the Commissioner’s decision be AFFIRMED.

I. BACKGROUND

Plaintiff filed prior applications for Title II Period of Disability and Disability Income

Benefits and Title XVI Supplemental Security Income Benefits on October 10, 2013, alleging

that she had been disabled since April 30, 2012. (R. 89.) On November 19, 2015, following

administrative denials of Plaintiff’s applications initially and on reconsideration, Administrative

Law Judge William J. Mackowiak issued a decision finding that Plaintiff was not disabled within

the meaning of the Act. (R. 89–97.)

Plaintiff filed her present applications for Title II Period of Disability and Disability

Income Benefits and Title XVI Supplemental Security Income Benefits on October 28, 2017,

alleging, after amendment, that she became disabled effective November 20, 2015. (R. 17, 227–

33.) On August 12, 2019, following administrative denials of Plaintiff’s applications initially

and on reconsideration, a hearing was held before Administrative Law Judge Deborah Sanders

(the “ALJ”). (Id. 46–85.) Plaintiff, represented by counsel, appeared and testified. Vocational

expert George Coleman (the “VE”) also appeared and testified at the hearing. On October 1,

2019, the ALJ issued a decision denying benefits. (Id. at 17–39.) On June 24, 2020, the Appeals

Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the

Commissioner’s final decision. (R. 1–3.) Plaintiff then timely commenced the instant action.

(ECF No. 1.)

In her Statement of Errors (ECF No. 19), Plaintiff asserts two contentions of error: (1) the

ALJ failed to properly evaluate the new and material evidence Plaintiff submitted after the prior

unfavorable decision and improperly adopted the prior ALJ’s residual functional capacity

(“RFC”)1 determination; and (2) the ALJ failed to properly evaluate the opinions of Shelly

Brown, CNP, Plaintiff’s treating nurse practitioner. (Id. at 7–17.)

II. THE ALJ’S DECISION

On October 1, 2019, the ALJ issued a decision finding again that Plaintiff was not

disabled within the meaning of the Social Security Act. (R. 17–39.) At step one of the

1 A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.” 20

C.F.R. § 404.1545(a)(1).

sequential evaluation process,2 the ALJ found that Plaintiff had not engaged in substantial

gainful activity since her alleged disability onset date of November 20, 2015. (Id. at 21.) At step

two, the ALJ found that Plaintiff has the severe impairments of schizoaffective disorder

depressive type, and posttraumatic stress disorder. (Id.) She further found at step three that

Plaintiff did not have an impairment or combination of impairments that met or medically

equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(Id. at 22.) At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:

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 non-exertional limitations: never work at

unprotected heights, around dangerous machinery, or operate a motor vehicle; work

is limited to simple, routine, and repetitive tasks in a work environment free of fast

paced production requirements with no production quotas involving only simple

work related decisions with few, if any, workplace changes; only occasional

interaction with coworkers, but no tandem or shared tasks; only occasional

interaction with supervisors; no interaction with the general public in a customer

service capacity.

(Id. at 25.)

2 Social Security Regulations require ALJs to resolve a disability claim through a five-step

sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th

Cir. 2007), if fully considered, the sequential review considers and answers five questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or equal the

criteria of an impairment set forth in the Commissioner’s Listing of Impairments, 20

C.F.R. Subpart P, Appendix 1?

4. Considering the claimant’s residual functional capacity, can the claimant perform his

or her past relevant work?

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

functional capacity, can the claimant perform other work available in the national

economy?

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

At step five of the sequential process, the ALJ found that Plaintiff was capable of

performing past relevant work as a cleaner. (Id. at 36.) The ALJ further found in the alternative,

relying on the VE’s testimony, that there are other jobs existing in the national economy that

Plaintiff is also able to perform. (Id. at 37–38.) The ALJ therefore concluded that Plaintiff was

not disabled under the Social Security Act. (Id. at 38.)

III. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C.

§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)).

Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court defers to

that finding ‘even if there is substantial evidence in the record that would have supported an

opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v.

Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the

substantial evidence standard, “a decision of the Commissioner will not be upheld where the

SSA fails to follow its own regulations and where that error prejudices a claimant on the merits

or deprives the claimant of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,

746 (6th Cir. 2007).

IV. ANALYSIS

As set forth above, Plaintiff asserts two contentions of error: (1) the ALJ failed to

properly evaluate the new and material evidence Plaintiff submitted after the prior unfavorable

decision and improperly adopted the prior ALJ’s RFC; and (2) the ALJ failed to properly

evaluate the opinions of Shelly Brown, CNP, Plaintiff’s treating nurse practitioner. The

undersigned considers each contention of error in turn.

A. The ALJ gave Plaintiff’s new and material evidence the “fresh look” required by

Earley.

In Drummond v. Commissioner of Social Security, the United States Court of Appeals for

the Sixth Circuit held that principles of res judicata apply to both claimants and the

Commissioner in Social Security cases. 126 F.3d at 841–42. The Drummond court specifically

held that absent evidence of “changed circumstances” relating to a claimant’s condition, “a

subsequent ALJ is bound by the findings of a previous ALJ.” Id. at 842. Following Drummond,

the Social Security Administration issued AR 98-4(6), which provides, in pertinent part, as

follows:

[W]hen adjudicating a subsequent disability claim with an unadjudicated period

arising under the same title of the Act as the prior claim, adjudicators must adopt

such a finding from the final decision by an ALJ or the Appeals Council on the

prior claim in determining whether the claimant is disabled with respect to the

unadjudicated period unless there is new and material evidence relating to such a

finding or there has been a change in the law, regulations or rulings affecting the

finding or the method for arriving at the finding.

AR 98–4(6), 1998 WL 283902, at *3 (June 1, 1998).

The Sixth Circuit clarified its Drummond decision in Earley v. Commissioner of Social

Security, 893 F.3d 929 (6th Cir. 2018). In Earley, the ALJ found that Drummond required him

to give preclusive effect to a prior RFC determination absent “new and material evidence

documenting a significant change in the claimant’s condition.” Id. at 930 (record citation

omitted). The Sixth Circuit disagreed with the ALJ’s approach, noting that Drummond was a

somewhat unusual case in which the claimant was seeking to hold the Commissioner to a prior

finding that she was limited to “sedentary” work, as opposed to the finding by a second ALJ that

she could engage in “medium” work. Id. at 934. Indeed, in Drummond, the claimant was

entitled to the benefit of res judicata as to the Commissioner’s previous finding because

“[n]othing had changed between the end of the first application and the beginning of the second

one—other than the advancement of one year in the applicant’s age.” Id. at 932 (citing

Drummond, 126 F.3d at 842). Under those circumstances, in which the first and second ALJs

reviewed essentially the same medical evidence,3 the Earley court affirmed Drummond’s holding

that the Commissioner was bound by the previous ALJ’s finding that the plaintiff was limited to

sedentary work. Id. at 932–33.

It is much more common, however, for claimants to receive an unfavorable decision and

then file a second application for a subsequent period, this time desiring that the Commissioner

reach a different result. Earley held that “[a]n individual may file a second application—for a

new period of time—for all manner of reasons and obtain independent review of it so long as the

claimant presents evidence of a change in condition or satisfies a new regulatory threshold.” Id.

at 932. The Sixth Circuit explained that “the key principles protected by Drummond—

3 The only additional evidence considered by the second ALJ was a report indicating that the

plaintiff’s “condition actually worsened” in the interim. Drummond, 126 F.3d at 843.

consistency between proceedings and finality with respect to resolved applications”—do not

prohibit the Social Security Administration “from giving a fresh look to a new application

containing new evidence or satisfying a new regulatory threshold that covers a new period of

alleged disability while being mindful of past rulings and the record in prior proceedings.” Id. at

931. Thus, “[w]hen an individual seeks disability benefits for a distinct period of time, each

application is entitled to review.” Id. at 933 (citations omitted). Nonetheless, “[f]resh review is

not blind review,” and “[a] later administrative law judge may consider what an earlier judge did

if for no other reason than to strive for consistent decision making.” Id. at 934. Indeed, “it is fair

for an administrative law judge to take the view that, absent new and additional evidence, the

first administrative law judge’s findings are a legitimate, albeit not binding, consideration in

reviewing a second application.” Id. at 933.

Courts applying the “fresh look” test must do so with consideration for the underlying

principle animating Earley: fairness to the applicant. See Ferrell v. Berryhill, No. 1:16-CV-

00050, 2019 WL 2077501, at *5 (E.D. Tenn. May 10, 2019) (explaining that “the point” of

Earley is fairness to the applicant). Accordingly, “an applicant should have the opportunity for a

full hearing, with no presumptions applied, when the claim covers a new period of time not

addressed in the prior hearing.” Id. As a result, “if an ALJ is under the mistaken assumption that

she is bound by the earlier ALJ’s decision, the applicant is faced with ‘an unwarranted

procedural burden . . . at the second hearing.’” Maynard v. Comm’r of Soc. Sec., No. 2:18-CV-

959, 2019 WL 3334327, at *6 (S.D. Ohio July 25, 2019), report and recommendation adopted,

2019 WL 3891859 (S.D. Ohio Aug. 16, 2019) (quoting Ferrell, 2019 WL 2077501, at *6).

In this case, Plaintiff submitted new evidence regarding her impairments during the

almost-four-year period subsequent to ALJ Mackowiak’s 2015 decision. She submitted

treatment records from New Horizons Mental Health Services, where she received mental health

treatment from 2014 through 2019, primarily from Shelly Brown, CNP. (R. 324–671, 767–

1084.) She also submitted several evaluations and opinions: a November 29, 2017 Mental Status

Questionnaire by Shelly Brown, CNP (R. 325–27); a May 31, 2019 mental Medical Source

Statement by Eric Kahn, M.D. (R. 754–66); and a June 14, 2017 Neurobehavioral Status

Examination by Jeffrey Daniel Madden, Ph.D. (R. 1085–90). These additional medical records

satisfy the “new evidence” standard required for a “fresh look” under Earley. 893 F.3d at 931.

The Court must therefore ask whether ALJ Sanders, “despite purporting to follow Drummond,

gave the evidence a fresh look” as required by Earley. See Johnson v. Comm’r of Soc. Sec., No.

2:17-CV-13126, 2018 WL 6440897, at *15 (E.D. Mich. Oct. 22, 2018) (collecting cases). “If so,

then the ALJ’s decision satisfie[s] Earley; if not, then remand [i]s appropriate.” See id.

Here, ALJ Sanders extensively discussed the many mental status examinations

documented in the New Horizons treatment notes as well as each of the medical source opinions.

The ALJ noted that, on examination during the relevant period, Plaintiff was oriented; her fund

of knowledge was often, though not always, intact; general information was impaired at times;

her memory was typically intact, except for rare occasions; she rarely exhibited paranoia; her

behavior was appropriate, pleasant, cooperative, and unagitated; her speech and language skills

were intact; her psychomotor activity was intact; her though process was intact; her thought

content was often normal; she sometimes reported auditory hallucinations, but often reported

none; she sometimes had delusions, but no psychosis; her attention and concentration were at

times impaired, at other times normal; her appearance was normal; she was casually dressed; she

was often labile, depressed, anxious, constricted, blunted, or flat, though at times her mood and

affect were appropriate; and her insight and judgment were typically intact. (See ALJ Decision,

R. 32–33, citing in detail New Horizons treatment notes.)

The ALJ also discussed the opinions of Jeffrey Madden, Eric Kahn, and Shelly Brown.

(R. 29–30, 33–35.) The ALJ noted that Dr. Madden performed cognitive testing, but Plaintiff’s

“results were unrealistically poor and invalid,” and that Dr. Madden concluded that Plaintiff’s

current medication regimen was the most obvious potential cause of the significant psychological

symptoms and cognitive issues. (R. 29, citing R. 1088.) The ALJ then provided a detailed

discussion of Dr. Khan’s opinion, discounting it largely because the form used was “deceptive.”

(R. 35.) That is, the form defined the various categories of limitations—mild, moderate, marked,

and extreme—in ways that do not correspond with Social Security regulations and policies. (Id.)

The ALJ also noted that Dr. Khan had only recently begun treating Plaintiff at the time the

opinion was rendered and his opinions were ultimately unsupported by the mental status

examinations in the record. (Id.) The ALJ also discounted Ms. Brown’s opinion because it was

unsupported by and inconsistent with the mental status examinations in the record, and because

her limitations were vague, conclusory, and extreme. (R. 33–34.)4

Finally, the ALJ also considered Plaintiff’s testimony at the August 12, 2019 hearing.

The ALJ noted that Plaintiff testified that she still heard voices, but less frequently than she did

at the time of the prior decision; Plaintiff reported her anxiety in crowds had not changed since

the prior decision; Plaintiff claimed to have flashbacks; Plaintiff testified she did not require

assistance to care for her fiancé, who is a double amputee learning to walk with prosthetics;

Plaintiff reported she could not concentrate long enough to read books or magazines, and had no

hobbies and never went out to dinner; Plaintiff testified that she could drive but went to the store

4 The ALJ’s consideration of Ms. Brown’s opinion is discussed in further detail below.

with her son due to her crowd anxiety; Plaintiff reported being able to pay bills and write checks;

and Plaintiff testified to poor sleep duration. (R. 26–27.)

In arriving at the RFC, ALJ Sanders cited Drummond and AR 98-4 and concluded:

The record does contain new evidence reflecting the claimant’s treatment since the

prior decision. However as discussed in more detail below, this new evidence is

not material as the record does not show significant improvement or worsening in

her symptoms since the prior decision. There is therefore not new and material

evidence to provide a basis for a different finding of the claimant’s residual

functional capacity. However, the undersigned has updated the residual functional

capacity to be policy compliant with Social Security regulations, such as removing

non-vocational terms such as “hazards” and “superficial” and inputting more

specific language to define those terms.

(R. 20.) Thus, ALJ Sanders arrived at an RFC that was nearly, but not completely, identical to

that arrived at by ALJ Mackowiak. The only differences are that ALJ Sanders (a) changed ALJ

Mackowiak’s restriction of “avoid concentrated exposure to hazards” to “never work at

unprotected heights, around dangerous machinery, or operate a motor vehicle”; (b) added a

restriction of “no production quotas”; and (c) changed “only brief and superficial interaction with

public” to “no interaction with the general public in a customer service capacity.” (Compare R.

92 with R. 25.) In sum, ALJ Sanders’s RFC is more restrictive than that of ALJ Mackowiak,

because it prohibits production quotas and interaction with the general public.

The undersigned concludes that ALJ Sanders complied with the core principles set forth

in Earley, as she gave “a fresh look” to Plaintiff’s new application “while being mindful of past

rulings and the record in the prior proceedings.” See 893 F.3d at 931. ALJ Sanders did not

merely adopt ALJ Mackowiak’s RFC without analysis; to the contrary, ALJ Sanders carefully

considered and discussed in detail the treatment notes, opinion evidence, and Plaintiff’s

testimony from the period subsequent to the prior decision. Moreover, ALJ Sanders included

additional restrictions that were not present in ALJ Mackowiak’s RFC, demonstrating that ALJ

Sanders did not incorrectly believe herself to be bound by the prior RFC. The undersigned

therefore finds no error in the ALJ’s application of Drummond. See, e.g., Lambert v. Comm’r of

Soc. Sec., No. 1:18-CV-116, 2019 WL 336903, at *5 (S.D. Ohio Jan. 28, 2019) (“Because ALJ

Nguyen gave a “fresh look” to the new evidence, a remand under Earley is not warranted, and

the undersigned must conduct a substantial evidence review of ALJ Nguyen’s decision.”);

Earley, 893 F.3d at 933 (“[I]t is fair for an administrative law judge to take the view that, absent

new and additional evidence, the first administrative law judge’s findings are a legitimate, albeit

not binding, consideration in reviewing a second application.”); Washington v. Comm’r of Soc.

Sec., No. 1:17-CV-773, 2019 WL 1367736, at *5 (S.D. Ohio Mar. 26, 2019) (declining remand

where the ALJ reviewing the second application “did not merely rely upon the earlier denial,”

but “undertook an evaluation of the objective medical evidence presented and claimant’s

allegations of limitation”).

B. The ALJ did not err in considering the opinions of Shelly Brown, CNP.

Plaintiff next argues that the ALJ “improperly evaluated the questionnaire completed by

Ms. Brown[, Plaintiff’s treating nurse practitioner],” which “result[ed] in an inaccurate residual

functional capacity.” (Pl.’s Statement of Errors 12, ECF No. 18.) Specifically, Plaintiff

contends that the ALJ’s discussion of the supportability and consistency of Ms. Brown’s opinion

was lacking. (Id. at 14–16.) The undersigned disagrees.

A claimant’s RFC is an assessment of “the most [a claimant] can still do despite [his]

limitations.” 20 C.F.R. § 416.945(a)(1) (2012). A claimant’s RFC assessment must be based on

all the relevant evidence in a his or her case file. Id. The governing regulations5 describe five

different categories of evidence: (1) objective medical evidence, (2) medical opinions, (3) other

5 Plaintiff’s application was filed after March 27, 2017. Therefore, it is governed by revised

regulations redefining how evidence is categorized and evaluated when an RFC is assessed. See

20 C.F.R. §§ 404.1513(a), 404.1520c, 416.913(a), 416.920c (2017).

medical evidence, (4) evidence from nonmedical sources, and (5) prior administrative medical

findings. 20 C.F.R. §§ 404.1513(a)(1)-(5); 416.913(a)(1)–(5). When evaluating medical

opinions, an ALJ is not required to “defer or give any specific evidentiary weight, including

controlling weight, to any medical opinion(s) or prior administrative finding(s) including those

from [the claimant’s] medical sources.” 20 C.F.R. §§ 404.1520c(a); 416.920c(a). Instead, an

ALJ must use the following factors when considering medical opinions: (1) “[s]upportability”;

(2) “[c]onsistency”; (3) “[r]elationship with the claimant”; (4) “[s]pecialization”; and (5) other

factors, such as “evidence showing a medical source has familiarity with the other evidence in

the claim or an understanding of [the SSA’s] disability program s policies and evidentiary

requirements.” §§ 404.1520c(c)(1)–(5); 416.920c(c)(1)–(5). Although there are five factors,

supportability and consistency are the most important, and the ALJ must explain how they were

considered. §§ 404.1520c(b)(2); 416.920c(b)(2). And although an ALJ may discuss how he or

she evaluated the other factors, he or she is not generally required to do so. Id. If, however, an

ALJ “find[s] that two or more medical opinions . . . about the same issue are both equally well-

supported . . . and consistent with the record . . . but are not exactly the same, [the ALJ must]

articulate how [he or she] considered the other most persuasive factors . . . .”

§§ 404.1520c(b)(3); 416.920c(b)(3).

Shelly Brown, CNP, completed a Mental Status Questionnaire on November 29, 2017.

(R. 325–27.) The ALJ provided the following discussion of Ms. Brown’s opinions, finding them

unpersuasive:

The undersigned has considered the opinion of nurse Shelly Brown. In November

2017, she completed a form indicating the claimant could not manage her benefits.

In response to a question asking her to please describe the claimant’s ability to

remember, understand, and follow directions, Ms. Brown responded with “no—

shows limited ability to remember, understand, or follow directions”. With

maintaining attention, she responded “no—cannot maintain attention”. She

indicated the claimant “cannot sustain concentration complete tasks”. She

indicated the claimant isolated herself from others and could not adapt easily due

to critical thinking problems. She indicated the claimant was unable to react well

to work pressures. (Exhibit B1F, pages 3-4).

Nurse Brown did have a long treatment relationship with the claimant on which to

base her opinion. However, this degree of limitation is not consistent with the

mental status examinations in the record. Additionally, her opinions are fairly vague

and conclusory. For instance, she indicated the claimant had limited ability to

remember, understand, or follow directions, but did not explain to what degree

those limitations were. Other limitations she gave were extreme. For instance, her

indication that the claimant “cannot sustain concentration complete tasks” would

imply the claimant is completely incapable of performing any task at all. Such

extreme limitations is not supported by the record and is contrary to the claimant’s

activities of daily living and her ability to drive. While the record did support

concentration deficits, she was certainly not incapable of completing any task. For

these reasons, this opinion is not persuasive.

(R. 33–34.) The undersigned finds no error with the ALJ’s consideration of Ms. Brown’s

opinions. The ALJ appropriately explained that Ms. Brown’s opinions that Plaintiff could not

maintain attention or concentration at all was neither supported by nor consistent with the record.

The ALJ’s decision to not include Ms. Brown’s extreme cognitive limitations in Plaintiff’s RFC

was therefore supported by substantial evidence.

First, as to supportability: the ALJ clearly states that Ms. Brown’s opinions are not

supported by the record. In this case, the record consists primarily of treatment notes New

Horizons by Ms. Brown herself, which the ALJ discussed in detail elsewhere in the record. (See

R. 22–25, 32–33.) Namely, mental status examinations by Ms. Brown reflected that Plaintiff’s

thought process was intact; her attention and concentration were sometimes normal and at other

times impaired; and that at times she was easily distracted. (Id. at 24, 32.) These findings do not

support Ms. Brown’s extreme limitations. Nor does Ms. Brown support her opined limitations in

the Mental Status Questionnaire itself; she has merely written short, conclusory phrases in

answer to the form’s questions, despite also being asked to “include a brief example to support

your clinical conclusion in each area.” (R. 325.) See Pettigrew v. Berryhill, No. 1:17-cv-1118,

2018 WL 3104229, *13 (N.D. Ohio June 4, 2018) (“Numerous decisions have found that the use

of checklist or check-the-box forms that contain little to no accompanying explanation for the

assessed limitations—even when utilized by a treating physician or acceptable medical source—

are unsupported opinions . . . .” (citing Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 630

(6th Cir. 2016) (“Dr. Chapman’s checklist opinion did not provide an explanation for his

findings; therefore, the ALJ properly discounted it on those grounds.”); Smith v. Astrue, 359 F.

App’x 313, 316 (3d Cir. 2009) (“[C]hecklist forms . . . which require only that the completing

physician check a box or fill in a blank, rather than provide a substantive basis for the

conclusions stated, are considered weak evidence at best in the context of a disability analysis.”)

(internal quotation marks and citation omitted). Thus, although the ALJ may not have used the

term “supportability,” the ALJ’s discussion satisfied the requirements of §§ 404.1520c and

416.920c as to the supportability of Ms. Brown’s opined limitations.

Similarly, the ALJ provided adequate discussion of the consistency between Ms. Brown’s

opined limitations and the mental status examinations of record. Contrary to Plaintiff’s

contention that the ALJ did not provide a record citation for this statement, the ALJ extensively

detailed the mental status examinations elsewhere in the decision. (R. 22–25, 32–33.) See Hill

v. Comm’r of Soc. Sec., 560 F. App’x 547, 551 (6th Cir. 2014) (recognizing that the ALJ's

decision should be read as a whole). The ALJ also pointed out that Plaintiff was able to

complete activities of daily living and had the ability to drive. (R. 34.) Therefore, the ALJ

appropriately found that, although the mental status examinations documented some impairments

of concentration and attention, nothing in the record suggested that Plaintiff’s cognitive

impairments prevented her from completing any tasks at all, as opined by Ms. Brown. This

discussion satisfied the requirements of §§ 404.1520c and 416.920c as to the consistency of Ms.

Brown’s extreme cognitive limitations.

Finally, Plaintiff also objects to the ALJ’s characterization of Ms. Brown’s opinions as

“vague” and “extreme.” (Pl.’s Statement of Errors 16.) Yet the ALJ supported each of these

characterizations with appropriate examples: Ms. Brown’s opinions were vague because, “[f]or

instance, she indicated the claimant had limited ability to remember, understand, or follow

directions, but did not explain to what degree those limitations were.” (R. 34.) See Gaskin v.

Comm’r of Soc. Sec., 280 F. App’x 472, 476 (6th Cir. 2008) (ALJ appropriate discounted

medical source’s opined limitations because they were “vague and not defined”). Similarly, Ms.

Brown’s opinions were extreme because, “[f]or instance, her indication that the claimant ‘cannot

sustain concentration complete tasks’ would imply the claimant is completely incapable of

performing any task at all. Such extreme limitations is not supported by the record . . . .” (Id.)

In addition to meeting the commonsense definition of “extreme”—surely a complete inability to

perform a cognitive function lies at the extreme end of the continuum of functioning—the ALJ’s

characterization is also consistent with the Social Security regulations defining “extreme” mental

limitations: a claimant has an extreme limitation if “[she is] not able to function in this area

independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. Part 404, Subpart

P, Appendix 1, § 12.00(F)(2)(e). If Plaintiff is not able to complete any task at all, it logically

follows that Plaintiff cannot “function in this area independently, appropriately, effectively, and

on a sustained basis.” The undersigned finds no error in the ALJ’s characterizations of Ms.

Brown’s opinions.

In sum, the Court concludes that the ALJ’s discussion of the supportability and

consistency factors satisfied the articulation requirements of §§ 404.1520c and 416.920c and that

the ALJ’s supportability and consistency analysis was supported by substantial evidence.

Although Plaintiff cites other record evidence that may have supported a more limited RFC,

“[a]s long as substantial evidence supports the Commissioner’s decision, we must defer to it,

even if there is substantial evidence in the record that would have supported an opposite

conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).

V. DISPOSITION

In sum, from a review of the record as a whole, the Court concludes that substantial

evidence supports the ALJ’s decision denying benefits. For the foregoing reasons, it is

RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM

the Commissioner of Social Security’s decision.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE