The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JENNA B.,1 : 21 00176
:
Plaintiff, : CMaaseg iNstora. t3e: Jud-cgve- Caroli ne H. Gentry
: (by full consent of the parties)
vs.
:
:
COMMISSIONER OF THE SOCIAL
:
SECURITY ADMINISTRATION,
:
Defendant. :
DECISION AND ORDER
I. INTRODUCTION
Plaintiff filed an application for Child’s Insurance Benefits in October 2018.
Plaintiff’s claim was denied initially and upon reconsideration. She subsequently filed an
application for Supplemental Security Income in September 2019, and this claim was
escalated to the hearing level. After a hearing at Plaintiff’s request, the Administrative
Law Judge (ALJ) concluded that Plaintiff was not eligible for benefits because she was
not under a “disability” as defined in the Social Security Act. The Appeals Council
denied Plaintiff’s request for review. Plaintiff subsequently filed this action.
Plaintiff seeks an order remanding this matter to the Commissioner for the award
of benefits or, in the alternative, for further proceedings. The Commissioner asks the
1 See S.D. Ohio General Order 22-01 (“The Committee on Court Administration and Case Management
of the Judicial Conference of the United States has recommended that due to significant privacy concerns
in social security cases federal courts should refer to claimants only by their first names and last
initials.”).
Court to affirm the non-disability decision. This matter is before the Court on Plaintiff’s
Statement of Errors (Doc. 11), the Commissioner’s Memorandum in Opposition (Doc.
14), Plaintiff’s Reply (Doc. 15), and the administrative record (Doc. 8).
II. BACKGROUND
Plaintiff asserts that she has been under a disability since February 1, 2018.2 At
that time, she had not yet attained the age of twenty-two years old.3 Accordingly, Plaintiff
was considered a “younger person” under Social Security Regulations. See 20 C.F.R.
§§ 404.1563(c), 416.963(c).4 Plaintiff has a “high school education and above.” See 20
C.F.R. § 404.1564(b)(4).
The evidence in the administrative record is summarized in the ALJ’s decision
(Doc. 8-2, PageID 43-60), Plaintiff’s Statement of Errors (Doc. 11), the Commissioner’s
Memorandum in Opposition (Doc. 14), and Plaintiff’s Reply (Doc. 15). Rather than
repeat these summaries, the Court will discuss the pertinent evidence in its analysis
below.
2 The ALJ’s decision references an alleged onset date of February 1, 2018 (Doc. 8-2, PageID 43).
However, Plaintiff alleged disability beginning September 15, 2018, in her Child’s Insurance Benefits
application (Doc. 8-5, PageID 172), and her Supplemental Security Income application references an
alleged onset date of October 30, 2018. (Doc. 8-5, PageID 186.) Plaintiff’s attorney did not contest the
alleged onset date that is listed in the ALJ’s decision.
3 Social Security regulations provide for the provide for the payment of disabled child’s insurance
benefits if the claimant is eighteen years old or older and has a disability that began before attaining age
twenty-two. 20 C.F.R. § 404.350(a)(5).
4 The remaining citations will identify only the pertinent Disability Insurance Benefits Regulations, as
they are similar in all relevant respects to the corresponding Supplemental Security Income Regulations.
III. STANDARD OF REVIEW
The Social Security Administration provides Child’s Insurance Benefits and
Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 402, 423(a)(1), 1382(a). The term “disability” means “the inability to do any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 404.1505(a).
This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.”).
“Unless the ALJ has failed to apply the correct legal standards or has made findings of
fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.
Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may
not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.” Id.
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation omitted). This limited standard of review does not permit the Court to weigh the
evidence and decide whether the preponderance of the evidence supports a different
conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is
supported by substantial evidence, which “means—and means only—‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.
(citation omitted). This standard “presupposes that there is a zone of choice within which
the decisionmakers can go either way, without interference by the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Thus, the Court may be required to affirm the
ALJ’s decision even if substantial evidence in the record supports the opposite
conclusion. Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009). “[E]ven if supported by substantial evidence, ‘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.’” Id. (citations omitted). Such an error of law will require reversal even
if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc. Sec.,
896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).
IV. FACTS
A. The ALJ’s Findings of Fact
The ALJ was tasked with evaluating the evidence related to Plaintiff’s application
for benefits. In doing so, the ALJ considered each of the five sequential steps set forth in
the Social Security Regulations. See 20 C.F.R. § 404.1520. The ALJ made the following
findings of fact:
Step 1: Born September 15, 2000, Plaintiff had not attained age 22 as of
February 1, 2008, the alleged onset date.
Plaintiff has not engaged in substantial gainful activity since the
alleged onset date.
Step 2: She has the severe impairments of major depressive disorder,
generalized anxiety disorder, attention-deficit hyperactivity disorder
(ADHD), and post-traumatic stress disorder (PTSD).
Step 3: She does not have an impairment or combination of impairments
that meets or equals the severity of one in the Commissioner’s
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.
Step 4: Her residual functional capacity (RFC), or the most she can do
despite her impairments, see Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 239 (6th Cir. 2002), consists of a full range of work at all
exertional levels, but with the following non-exertional limitations:
“She can perform simple, routine tasks, in work that has only
occasional changes in the work setting.”
She has no past relevant work.
Step 5: Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in
the national economy that she can perform.
(Doc. 8-2, PageID 46-60.) These findings led the ALJ to conclude that Plaintiff does not
meet the definition of disability and so is not entitled to benefits. (Id. at PageID 60.)
B. Joyce Parson, M.S.W./L.I.S.W.-S.
Ms. Parson, a licensed independent social worker, submitted narrative reports in
June 2019, February 2020, and November 2020. (Doc. 8-7, PageID 409-14, 419-20; Doc.
8-8, PageID 581-84.) Ms. Parson indicated that she began seeing Plaintiff on a weekly
basis in June 2014, and she continued services via telehealth from January 2019 to
December 2019. (Doc. 8-7, PageID 410, 419-20; Doc. 8-7, PageID 581.) Ms. Parson said
that she subsequently terminated services when Plaintiff became “suicidal again,”
because she believed that “actively suicidal clients should not be seen via telehealth.”
(Doc. 8-8, PageID 581.)
In the June 2019 report, Ms. Parson detailed the nature and symptoms of
Plaintiff’s conditions, which she listed as major depressive disorder, PTSD, ADHD, and
generalized anxiety disorder. (Id. at PageID 413.) She explained that Plaintiff had
struggled with depression since 2013 or 2014, and was taking medication but continued
to experience mild to moderate symptoms. (Id.) She noted that Plaintiff had difficulty
with “serious sleep problems, memory, motivation and decision making.” (Id.) She
attributed Plaintiff’s PTSD to her upbringing, which included verbal and emotional abuse
and a lack of other supports. (Id.) According to Ms. Parson, Plaintiff had a “hair trigger
temper” that resulted in verbal outbursts. (Id.) As for ADHD, Ms. Parson reported:
[Plaintiff] has difficulty paying attention, loses focus easily, [and] jumps
from subject to subject in conversation. She is extremely impulsive, makes
poor decisions, [and] struggles with motivation and procrastination (partially
due to fears, but largely due to ADHD). [Plaintiff] struggles with poor self-
esteem and low self-confidence. Memory issues are often a symptom of this
condition as well.
(Id.) With regard to Plaintiff’s anxiety, Ms. Parson reported that Plaintiff had multiple
fears and phobias,” including a fear of trying new things. (Id.) Ms. Parson noted that
Plaintiff had made some improvement with therapy, but stated that “with a complex
mental health history and multiple fears and anxieties, it will take years to resolve some
of her challenges.” (Id. at PageID 414.) Ms. Parson noted that Plaintiff sometimes forgot
appointments and struggled with “remembering and complying with behavioral goals.”
(Id.) Significantly, Ms. Parson explained that this behavior was “consistent with her
mental health diagnoses.” (Id.)
Ms. Parson opined that Plaintiff’s conditions “make it highly unlikely that she
could successfully work.” (Doc. 8-7, PageID 414.) She opined and explained:
[Plaintiff] would have difficulty learning a new job because of ADHD and
her many fears. She would have problems remembering details of the job and
even her schedule. She would have difficulty being timely for a job due to
her significant sleep problems. Perhaps the greatest challenge would be in
managing her response to instruction and correction. Her quick temper and
verbal outbursts would likely result in losing any employment she might
gain. [Plaintiff] is emotionally very immature due to her years of verbal and
emotional abuse, her self esteem is so low that she rarely makes important
phone calls or deals with the realities of day to day life. Her depression and
motivation issues would impede her more. This therapist is hopeful that one
day she can live a meaningful and productive life, but she has a long period
of healing, recovery and maturing ahead of her. This therapist believes it
would be difficult for her to find employment and nearly impossible for her
to sustain it at this time.
(Id.)
In her February 2020 report, Ms. Parson again summarized Plaintiff’s conditions
and treatment history. (Doc. 8-7, PageID 419.) Consistent with the June 2019 report, Ms.
Parson attributed Plaintiff’s PTSD to her upbringing, which Ms. Parson described as an
“abusive and explosive home life.” (Id. at PageID 419-20). She noted that Plaintiff’s
parents “did not keep her on medications consistently and refused medication for
ADHD.” (Id. at PageID 419.) Ms. Parson stated that Plaintiff’s depression was not yet
stable on medication. (Id. at PageID 420.) She noted that Plaintiff was “emotionally
immature, made impulsive decisions, and used poor judgment in life.” (Id. at PageID
419.) Ms. Parson again noted Plaintiff’s “hair trigger temper,” which she opined
“impair[ed] her ability to take direction from others and to work compatibly with others.”
(Id.) Ms. Parson concluded: “It will be sometime before [Plaintiff] is stable enough for a
work environment. She has many wounds from which to heal and numerous obstacles to
overcome. I do believe that after some months of intensive treatment and the appropriate
medications, that she will eventually be able to go for advanced schooling or have gainful
employment.” (Id. at PageID 420.)
In her final report from November 2020, Ms. Parson again summarized Plaintiff’s
impairments and treatment history. (Doc. 8-8, PageID 581-82.) Ms. Parson noted she no
longer had access to records from Clearing Paths Therapeutic Services, where she first
treated Plaintiff. (Id. at PageID 582.) Ms. Parson reported observing the following signs
and symptoms: poor memory; appetite disturbance with weight change; sleep
disturbance; mood disturbance; emotional lability; recurrent panic attacks; anhedonia or
pervasive loss of interests; paranoia or inappropriate suspiciousness; feelings of
guilt/worthlessness; difficulty thinking or concentrating; suicidal ideation or attempts;
social withdrawal or isolation; blunt, flat, or inappropriate affect; illogical thinking;
decreased energy; obsessions or compulsions; intrusive recollections of a traumatic
experience; persistent irrational fears; generalized persistent anxiety; hostility or
irritability; and pathological dependence or passivity. (Id. at PageID 581.)
Ms. Parson stated that Plaintiff “did not make substantial progress” in treatment
and often forgot to practice or became confused about what she learned during therapy
sessions. (Id. at PageID 582.) She said that Plaintiff experienced “frequent memory
problems and at times irrational thinking,” which caused her to miss class, work, or other
activities due to panic attacks. (Id.) Ms. Parson reported that Plaintiff “struggle[d] with
any form of criticism or correction” and could “become aggressive, both verbally and
potentially physically.” (Id.) Ms. Parson opined that this behavior created problems with
relationships, “including with supervisors and coworkers.” (Id.) She noted that Plaintiff
had tried to work at a job but that “the stress and the frequent triggers from her trauma
prevented her from maintaining it.” (Id. at PageID 583.) Ms. Parson opined that Plaintiff
experienced marked restrictions in activities of daily living and was extremely limited in
maintaining social functioning and maintaining concentration, persistence, and pace. (Id.)
She also opined to marked episodes of deterioration or decompensation. (Id.)
C. The ALJ’s Analysis of Ms. Parson’s Reports
The ALJ summarized these reports in the medical evidence discussion section of
the RFC analysis. (Doc. 8-2, PageID 52, 54, 56.) In the opinion analysis section, the ALJ
concluded that Ms. Parson’s opinions in the February 2020 report and the November
2020 report were unpersuasive. (Id. at PageID 58.) The ALJ explained:
The undersigned finds that while these opinions are supported by
explanation, they are inconsistent with the overall record; and therefore are
unpersuasive. Specifically, the objective evidence, clinical findings, alleged
symptomology and activities of daily living are inconsistent with these
opinions. Moreover, as to the issue of whether [Plaintiff] can engage in
gainful employment, this is an issue reserved for the Social Security
Commissioner.
(Id.) The ALJ did not evaluate the persuasiveness of Ms. Parson’s June 2019 report.
Instead, he cited this report only when addressing Ms. Parson’s “statements on issues
reserved to the Commissioner.” (Doc. 8-2, PageID 58, referencing Doc. 8-7, PageID 414,
420; Doc. 8-8, PageID 84.)
V. LAW AND ANALYSIS
Plaintiff asserts that the ALJ “reversibly erred in evaluating [Plaintiff’s] RFC and
the mental health source opinions.” (Doc. 11, PageID 600.) Plaintiff specifically
challenges the ALJ’s evaluation of Ms. Parson’s opinions and the State agency
psychological consultants’ findings. (Id.) Finding error in the ALJ’s analysis of Ms.
Parson’s opinions, the Court does not address Plaintiff’s other alleged errors and, instead,
instructs the ALJ to address all of them on remand.
A. Evaluation of Medical Opinions
Social Security regulations require ALJs to adhere to certain standards when
evaluating medical opinions. ALJs must analyze the persuasiveness of “all of the medical
opinions” in the record. 20 C.F.R. § 404.1520c (emphasis added). A “medical opinion”
is a “statement from a medical source about what [an individual] can still do despite [her]
impairment(s)” and whether the individual has one or more impairment-related
limitations or restrictions. 20 C.F.R. § 404.1513(a)(2). By contrast, a statement from a
medical source about an issue reserved to the Commissioner—such as whether an
individual is disabled—need not be addressed by the ALJ. 20 C.F.R. § 404.1520b(c)(3).
Because Plaintiff filed her claims in October 2018 and September 2019, the new
regulations for evaluating medical opinion evidence applied. Under these regulations, the
ALJ “will not defer or give any specific evidentiary weight, including controlling weight,
to any medical opinion(s) or prior administrative medical finding(s) . . . .” 20 C.F.R.
§ 404.1520c(a). Instead, the ALJ must evaluate the persuasiveness of each medical
opinion and prior administrative medical finding by considering the following factors: (1)
supportability; (2) consistency; (3) relationship with the plaintiff; (4) specialization; and
(5) any other factor “that tend[s] to support or contradict a medical opinion or prior
administrative medical finding.” 20 C.F.R. § 404.1520c(c).
Significantly, because the first two factors—supportability and consistency—are
the “most important” ones, the ALJ “will explain” how he or she considered them. 20
C.F.R. § 404.1520c(b)(2) (emphasis added).5 As to the first factor (supportability), “[t]he
more relevant the objective medical evidence and supporting explanations presented by a
medical source are to support his or her medical opinion(s) . . . the more persuasive the
medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). As to the second factor
(consistency), “[t]he more consistent a medical opinion(s) . . . is with the evidence from
other medical sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).
B. Harmless Error
Courts generally will excuse an ALJ’s procedural violation as harmless error
unless it prejudices the claimant on the merits or deprives him of substantial rights.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2007) (citing Connor v. U.S.
5 By contrast, the ALJ “may, but [is] not required to,” explain the consideration given to the remaining factors. 20
C.F.R. § 404.1520c(b)(2).
Civil Serv. Comm’n, 721 F.2d 1054, 1056 (6th Cir. 1983)). A court’s ability to excuse a
procedural error depends, however, upon the nature of the regulation and the importance
of its procedural safeguard. Id. For example, an ALJ’s failure to comply with the treating
physician rule will rarely be excused. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th
Cir. 2004). Such an error may only be excused as harmless if the medical opinion “is so
patently deficient that the Commissioner could not possibly credit it,” if the violation is
irrelevant because the Commissioner “adopts the opinion … or makes findings consistent
with [it],” or if the goal of the procedural safeguard is otherwise met. Id. at 547.
The Sixth Circuit has not addressed the circumstances under which an ALJ’s
failure to explain his consideration of the supportability and consistency factors, as
required by 20 C.F.R. § 404.1520c(b)(2), can be excused as harmless error. However,
several district courts in the Sixth Circuit have held that the harmless error test articulated
in Wilson, which applies to violations of the treating physician rule, should also apply to
violations of Section 404.1520c(b)(2). See Musolff v. Comm’r of Soc. Sec., 2022 U.S.
Dist. LEXIS 88910, *39 (N.D. Ohio Apr. 27, 2022) (citing cases). This Court agrees that
the harmless error test articulated in Wilson should apply to violations of 20 C.F.R.
§ 404.1520c(b)(2).
The mandatory articulation requirement in Section 404.1520c(b)(2) is similar to
the “good reasons” requirement of the treating physician rule. Under that rule, an ALJ
who declines to give controlling weight to the opinion of a treating physician must
articulate “specific reasons for the weight given to the treating source’s medical opinion,
supported by the evidence in the case record.” SSR 96-2p, 1996 WL 374188, *5 (1996).
The ALJ’s stated reasons “must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” Id. The purposes of the good reasons requirement are twofold:
to permit meaningful judicial review of the ALJ’s application of the treating physician
rule, and to ensure that claimants understand why the ALJ disagreed with the opinion of
their own physician, who considered them disabled. Wilson, 378 F.3d at 544-45.
The regulation at issue here is part of the regulatory framework that replaced the
treating physician rule and its concomitant good reasons requirement. Under the new
framework, ALJs do not give controlling weight to a treating physician’s opinion.
Instead, ALJs must evaluate the persuasiveness of each medical opinion by using a five-
factor test. 20 C.F.R. § 404.1520c(c). ALJs are not required to explain their consideration
of all five factors. 20 C.F.R. §§ 404.1520c(b)(2). They are, however, required to explain
their evaluation of the supportability and consistency factors. Id. The regulation therefore
imposes a burden of explanation, or mandatory articulation, upon ALJs.
The mandatory articulation requirement in Section 404.1520c(b)(2) serves the
same purposes as the good reasons requirement of the treating physician rule. By
requiring ALJs to articulate their analysis of the most important factors to consider when
determining the persuasiveness of medical opinions (i.e., supportability and consistency),
the requirement permits meaningful judicial review. It also ensures that claimants will
receive an explanation of why the ALJ found each medical opinion, including those of
their treating physician, to be persuasive, partially persuasive, or not persuasive.
In sum, the function and purposes of the mandatory articulation rule in Section
404.1520c(b)(2) are similar to those of the good reasons requirement at issue in Wilson.
Therefore, the Wilson harmless error test should also apply to procedural violations of
Section 404.1520c(b)(2).
This conclusion is consistent with Sixth Circuit’s analysis in Rabbers. In that case,
the Sixth Circuit reasoned that the Wilson test should not extend to a regulation that is a
mere “adjudicatory tool” designed to aid the SSA. Rabbers, 582 F.3d at 656. Here, the
mandatory articulation requirement is not an adjudicatory tool. Instead, it imposes a
burden of explanation that serves an “independent and important function” by enabling
judicial review and allowing claimants to understand the reasons for the decision. Id. The
Commissioner’s use of mandatory language (the ALJ “will explain”) confirms the
importance of this procedural safeguard. 20 C.F.R. § 404.1520c(b)(2) (emphasis added).
The relative ease or difficulty of conducting a harmless error analysis is also a
relevant factor to consider. Rabbers, 582 F.3d at 657. An ALJ’s failure to comply with
Section 404.1520c(b)(2) will make it difficult for a court to determine whether the error
is harmless. See, e.g., Terhune v. Kijakazi, Case No. 3:21-cv-37, 2022 WL 2910002, *5
(E.D. Ky. July 22, 2022). This difficulty provides another reason for concluding that the
Wilson test should apply to violations of Section 404.1520c(b)(2).
For these reasons, this Court concludes that the Wilson harmless error test applies
to violations of 20 C.F.R. § 404.1520c(b)(2). Accordingly, an ALJ’s failure to explain his
consideration of the supportability and consistency factors when determining the
persuasiveness of a medical opinion can only be excused as harmless error if: (1) the
medical opinion is patently deficient, (2) the ALJ adopted the medical opinion or made
findings consistent with the opinion, or (3) the goal of the regulation was otherwise met.
Wilson, 378 F.3d at 547. Such an error cannot be excused as harmless for other reasons,
including where substantial evidence in the record may support the ALJ’s conclusion
regarding the persuasiveness (or lack thereof) of the medical opinion. Id. at 546.
C. Evaluating Symptom Severity
When a claimant alleges symptoms of disabling severity, the Social Security
Administration uses a two-step process for evaluating an individual’s symptoms. SSR 16-
3p, 2017 WL 5180304, *3 (revised and republished Oct. 25, 2017).
First, the ALJ must “determine whether the individual has a medically
determinable impairment that could reasonably be expected to produce the individual’s
alleged symptoms.” SSR 16-3p at *3. The ALJ must make this determination based upon
objective medical evidence in the form of medical signs or laboratory findings. Id.
Medical signs are “anatomical, physiological, or psychological abnormalities established
by medically acceptable clinical diagnostic techniques that can be observed apart from an
individual’s symptoms.” Id. The ALJ will not, however, consider whether the objective
medical evidence supports the alleged severity of the individual’s symptoms. Id.
Second, the ALJ must “evaluate the intensity and persistence of an individual’s
symptoms … and determine the extent to which an individual’s symptoms limit his or her
ability to perform work-related activities.” SSR 16-3p at *9. The Social Security
Administration “recognize[s] that some individuals may experience symptoms differently
and may be limited by symptoms to a greater or lesser extent than other individuals with
the same medical impairments, the same objective medical evidence, and the same non-
medical evidence.” Id. The ALJ must therefore examine “the entire case record, including
the objective medical evidence; an individual’s statements about the intensity,
persistence, and limiting effects of symptoms; statements and other information provided
by medical sources and other persons; and any other relevant evidence in the individual’s
case record.” Id.
When evaluating the intensity, persistence and limiting effects of the claimant’s
alleged symptoms, the ALJ must consider the following factors:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for
relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15
to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual's functional limitations and
restrictions due to pain or other symptoms.
SSR 16-3p at *7-8; cf. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The ALJ need only
discuss those factors that are pertinent based upon the evidence in the record. Id. The
ALJ's discussion of the applicable factors “must contain specific reasons for the weight
given to the individual's symptoms, be consistent with and supported by the evidence,
and be clearly articulated so the individual and any subsequent reviewer can assess how
the adjudicator evaluated the individual's symptoms.” Id. at *10.
The ALJ must determine whether an individual’s symptoms and accompanying
limitations are consistent with the evidence in the record. SSR 16-3p at *8. For example,
the ALJ will consider an individual’s statements, keeping in mind that those statements
may be inconsistent because “[s]ymptoms may vary in their intensity, persistence, and
functional effects, or may worsen or improve with time.” Id. at *8-9.
The ALJ will also consider whether the claimant sought medical treatment and
followed treatment that was prescribed. SSR 16-3p at *9. Attempts to obtain treatment
may show that symptoms are intense and persistent; conversely, a lack of such efforts
may show that an individual’s symptoms are not intense or persistent. Id. However, the
ALJ “will not find an individual’s symptoms inconsistent … on this basis without
considering possible reasons he or she may not comply with treatment or seek treatment
consistent with the degree of his or her complaints.” Id. The ALJ must consider these
reasons “before drawing an adverse inference from the claimant’s lack of medical
treatment.” Dooley v. Comm'r of Soc. Sec., 656 F. App'x 113, 119 (6th Cir. 2016).
The SSR lists several examples of why individuals may not seek or follow
treatment, including side effects from medications, an inability to afford treatment, and
an inability to understand the need for treatment due to a mental impairment. Id. at *9-10.
The ALJ may need to contact the claimant to ascertain the reason(s) for the lack of
treatment. Id. at *9. The ALJ “will explain how [he or she] considered the individual’s
reasons” in the evaluation of the individual’s symptoms. Id. at *10 (emphasis added).
D. The ALJ Reversibly Erred When Analyzing Ms. Parson’s Opinions
The Court concludes that the ALJ erred in his analysis of Ms. Parson’s opinions
and that these errors cannot be excused as harmless. Therefore, the Court reverses and
remands the ALJ’s decision.
Before reaching the merits, the Court will address Defendant’s argument that the
ALJ did not need to evaluate Ms. Parson’s opinions:
Plaintiff’s repeated references to social worker Parson’s assessments as
“opinions” is incorrect. Under the regulations, opinions may only be issued
by acceptable medical sources, which does not include social workers. 20
C.F.R. § 416.902(a). Accordingly, the ALJ was under no obligation to
evaluate social worker Parson’s assessments as if they were medical
opinions under the regulations. See 20 C.F.R. § 416.920c (explaining an
ALJ’s obligation to evaluate medical opinions).
(Doc. 14, PageID 627.)
This argument is not well-taken. Although Ms. Parson, a licensed independent
social worker, is not an “acceptable medical source,” 20 C.F.R. § 404.1502(a), she is a
“medical source” that can render a medical opinion under the new regulations. 20 C.F.R.
§§ 404.1502(d), 404.1513(a)(2); Stacie B. v. Comm’r of Soc. Sec., No. 2:21-cv-4650,
2022 WL 1793149, at *4-5 (S.D. Ohio, June 2, 2022) (Jolson, M.J.) (holding that the ALJ
erred by failing to consider the medical opinions of a licensed social worker), report and
recommendation adopted, 2022 WL 2237057 (S.D. Ohio, June 22, 2022) (Graham, D.J.)
(citing 20 C.F.R. § 416.920c); see also Morris v. Saul, No. 1:19-cv-01588, 2021 WL
3889555, at *6 (M.D. Penn., Jan. 4, 2021) (“While licensed clinical social workers and
clinical mental health counselors are not ‘acceptable medical sources,’ under the new
applicable regulations, they are ‘medical sources’ who can render ‘medical opinions’ for
consideration of a claimant’s disability”). The ALJ was therefore required to evaluate the
persuasiveness of Ms. Parson’s opinions, and to articulate his analysis of the consistency
and supportability factors. 20 C.F.R. § 404.1520c(b)(2), (c).
1. The ALJ erred by failing to evaluate the persuasiveness of
Ms. Parson’s June 2019 opinions and the error was not
harmless.
As noted above, the ALJ did not evaluate the persuasiveness of Ms. Parson’s June
2019 opinions. Although the ALJ was permitted to disregard Ms. Parson’s statements on
issues reserved to the Commissioner, see 20 C.F.R. § 404.1520b(c), he was required to
address Ms. Parson’s other opinions. For example, Ms. Parson opined that Plaintiff would
have difficulty learning a new job and would have problems with “remembering details
of the job and even her schedule.” (Doc. 8-7, PageID 414.) She also opined that Plaintiff
would “have difficulty being timely for a job” and that she would have challenges with
“managing her response to instruction and correction.” (Id.) The ALJ failed to address the
supportability, consistency, or persuasiveness of these opinions, and therefore did not
comply with 20 C.F.R. § 404.1520c(b)(2).
Next, the Court considers whether the ALJ’s errors can be excused as harmless.
The Court finds that Ms. Parson’s opinions were not patently deficient and, further, that
the ALJ did not adopt her opinions or make findings consistent with them. Wilson, 378
F.3d at 547. The remaining question is whether the goals of Section 404.1520c(b)(2)
were met by the ALJ’s decision. Id. In other words, the Court must determine whether the
ALJ’s explanation is sufficient to permit meaningful judicial review and to enable the
Plaintiff to understand why the ALJ concluded that Ms. Parson’s opinions were not
persuasive.
The Court concludes that the ALJ’s decision does not meet the goals of Section
404.1520c(b)(2). The ALJ did not consider whether Ms. Parson’s opinions were
supported by her own explanations and findings or whether they were consistent with
evidence from other medical sources and nonmedical sources. This error precludes
meaningful judicial review and prevents Plaintiff from understanding why other
information consistent with Ms. Parson’s opinions did not lead the ALJ to find those
opinions persuasive.
Accordingly, the Court concludes that the ALJ’s error in failing to comply with
the mandatory articulation requirement in 20 C.F.R. § 404.1520c(c) cannot be excused as
harmless. The Commissioner’s decision must therefore be reversed and remanded. Cf.
Andrew M. v. Comm’r of Soc. Sec., Case No. 1:20-cv-906, 2022 U.S. Dist. LEXIS 40323,
*17-18 (S.D. Ohio Mar. 8, 2022) (Bowman, M.J.) (failure to comply with the mandatory
articulation requirement in Section 404.1520c(b)(2) was not harmless where evidence in
the record could have supported the rejected medical opinions); Miles v. Comm’r of Soc.
Sec., Case No. 3:20-cv-410, 2021 U.S. Dist. LEXIS 202840, *12 (S.D. Ohio Oct. 21,
2021) (Silvain, M.J.) (violation of the mandatory requirement in Section 404.1520c(b)(2)
required reversal and “the Commissioner’s post hoc rationalization of how [the] ALJ
could have applied the factors … does not cure this deficiency”).
2. The ALJ’s findings regarding the consistency of Ms.
Parson’s February 2020 and November 2020 opinions are
not supported by substantial evidence.
The ALJ also erred because his findings regarding the consistency of Ms. Parson’s
February 2020 and November 2020 opinions are not supported by substantial evidence.
The ALJ explained that Ms. Parson’s February 2020 and November 2020 opinions
were not persuasive because although they were “supported by explanation,” they were
“inconsistent with the overall record.” (Doc. 8-2, PageID 58.) The ALJ stated:
“Specifically, the objective evidence, clinical findings, alleged symptomology and
activities of daily living are inconsistent with these opinions.” (Doc. 8-2, PageID 58.) The
ALJ did not cite any evidence in support of these factual findings. (Id.)
The ALJ’s findings regarding the consistency factor are not supported by
substantial evidence. Ms. Parson provided extensive summaries of her treatment history
with Plaintiff and provided detailed reasons—based on Plaintiff’s history, presentations,
and mental status examinations—for all of her opinions. (See Doc. 8-7, PageID 413-14,
419-20; Doc. 8-8, PageID 581-84.) The ALJ did not explain what evidence in the record
was inconsistent with the evidence relied upon by Ms. Parson. (Doc. 8-2, PageID 58.)
The ALJ’s discussion of the medical records also failed to support his findings
regarding the consistency factor. (Doc. 8-2, PageID 50-56.) The ALJ summarized the
details of Plaintiff’s office visits, including Plaintiff’s complaints and the objective
findings, and concluded that “the objective evidence does not support the extent of the
alleged symptoms and limitations.” (Doc. 8-2, PageID 50-56.) Although the ALJ
provided two justifications for this finding, neither is supported by substantial evidence.
The ALJ first found that “[Plaintiff] mentions panic attacks and crying spells in
her testimony, but these are not prominent in the treatment notes.” (Id.) In fact, however,
Ms. Parson reported that Plaintiff experienced “recurrent” panic attacks. (Doc. 8-8,
PageID 494, 581.) Ms. Parson explained that Plaintiff “often missed class, work or other
activities due to panic attacks. She left one job because she had a panic attack and was
embarrassed.” (Id. at PageID 582 (emphasis added).) Therefore, this finding is not
supported by substantial evidence.
Next, the ALJ reasoned that “the record revealed a history of medication
noncompliance and when compliant the symptoms improved.” (Doc. 8-2, PageID 56.) In
reaching this conclusion, the ALJ did not consider why Plaintiff’s treatment history is
inconsistent with her complaints, as required by the applicable rule:
[I]f the frequency or extent of the treatment sought by an individual is not
comparable with the degree of the individual's subjective complaints, or if
the individual fails to follow prescribed treatment that might improve
symptoms, we may find the alleged intensity and persistence of an
individual's symptoms are inconsistent with the overall evidence of record.
We will not find an individual's symptoms inconsistent with the evidence
in the record on this basis without considering possible reasons he or she
may not comply with treatment or seek treatment consistent with the degree
of his or her complaints. We may need to contact the individual regarding
the lack of treatment or, at an administrative proceeding, ask why he or she
has not complied with or sought treatment in a manner consistent with his or
her complaints. . . . We will explain how we considered the individual's
reasons in our evaluation of the individual's symptoms.
SSR 16-3p, 2017 WL 5180304, *9-10 (revised and republished Oct. 25, 2017) (emphasis
added). The Sixth Circuit has confirmed that SSR 16-3p requires an ALJ to consider
possible reasons why a claimant failed to seek medical treatment consistent with the
degree of his or her complaints “before drawing an adverse inference from the claimant’s
lack of medical treatment.” Dooley v. Comm'r of Soc. Sec., 656 F. App'x 113, 119 (6th
Cir. 2016). Notably, an individual’s inability to understand the need for consistent
treatment and an individual’s lack of awareness that treatment is needed6 are two possible
reasons an ALJ should consider when evaluating treatment history. SSR 16-3p at *10.
The ALJ failed to comply with SSR 16-3p because he did not consider possible
reasons that Plaintiff failed to comply with or seek treatment consistent with her degree
of complaints. Specifically, the ALJ did not consider any explanations for Plaintiff’s
noncompliance with medication. The ALJ cited a December 2018 psychiatry progress
note that documents Plaintiff’s admission to Dr. Chung that she had not been taking her
medications regularly. (Doc. 8-2, PageID 51.) But the ALJ did not consider Dr. Chung’s
note that he “[d]iscussed strategies to prevent her from forgetting.” (Doc. 8-7, PageID
371.) Dr. Chung’s statement implies that Plaintiff had not been taking her medications
regularly because of forgetfulness. Consistent with this implication, Ms. Parson reported
that Plaintiff often experienced memory issues due to ADHD and that she struggled with
“remembering and complying with behavioral goals.” (Doc. 8-7, PageID 413-14.) Ms.
Parson explained that Plaintiff’s memory and compliance issues were “consistent with
her mental health diagnoses.” (Id. at PageID 414.) Similarly, when Plaintiff told Dr.
Chung in February 2019 that she had been off Adderall for a few weeks, Plaintiff said she
lost the medication. (Id. at PageID 384.)
6 SSR 16-3p specifically states that a mental impairment that affects judgment, reality testing, or orientation may
prevent an individual from being aware that she has a disorder that requires treatment. 2017 WL 5180304 at *10.
Further, during an emergency room visit for depression and suicidal ideation in
December 2019, Plaintiff said she had stopped taking her Zoloft. (Doc. 8-7, PageID 454.)
But Ms. Parson explained that Plaintiff had stopped taking her antidepressant at that time
because her dog “chewed up her prescription for her ADHD medication and [Plaintiff]
reasoned that if she wa[s not] taking both medications, there was no point to take only the
one.” (Doc. 8-7, PageID 419.) Ms. Parson explained that Plaintiff was “emotionally
immature, ma[de] impulsive decisions, and use[d] poor judgment,” and further noted that
Plaintiff’s poor judgment resulted in “taking significant risks and some of these have had
the potential of causing her physical harm.” (Id.) Ms. Parson also stated that Plaintiff had
“frequent memory problems and at times irrational thinking.” (Doc. 8-8, PageID 582.)
SSR 16-3p recognizes that an individual’s mental impairments and limitations
may prevent an individual from understanding the need for consistent treatment, or may
affect the individual’s judgment to the point she is unaware she has a disorder which
requires treatment. 2017 WL 5180304 at *10. In those circumstances, the ALJ should not
rely on a claimant’s treatment history to draw an adverse inference about the severity of
his or her symptoms. The ALJ did not acknowledge, much less address, Plaintiff’s or Ms.
Parson’s explanations for medication noncompliance in his evaluation of symptom
severity. (Doc. 8-2, PageID 56.) Thus, the ALJ did not comply with SSR 16-3p.
For all of these reasons, the ALJ’s evaluation of Ms. Parson’s opinions fails to
comply with the applicable legal framework and is unsupported by substantial evidence.
VI. CONCLUSION
Under Sentence Four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under Sentence Four may result in the need for further proceedings or an immediate
award of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041
(6th Cir. 1994). The latter is warranted where the evidence of disability is overwhelming
or where the evidence of disability is strong while contrary evidence is lacking. Faucher
v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is neither overwhelming nor strong while contrary evidence is
lacking. Faucher, 17 F.3d at 176. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to Sentence Four of Section
405(g) for the reasons stated above. On remand, the ALJ should further develop the
record as necessary, particularly as to the opinion of Joyce Parson, M.S.W./L.I.S.W.-S.,
and evaluate the evidence of record under the applicable legal criteria mandated by the
Commissioner’s regulations and rulings and governing case law. The ALJ should
evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether her applications for
Child’s Insurance Benefits and Supplemental Security Income should be granted.
IT IS THEREFORE ORDERED THAT:
1. Plaintiff’s Statement of Errors (Doc. 11) is GRANTED;
2. The Court REVERSES the Commissioner’s non-disability determination;
3. No finding is made as to whether Plaintiff was under a “disability” within
the meaning of the Social Security Act;
4. This matter is REMANDED to the Social Security Administration under
Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent
with this Decision and Order; and
5. This case is terminated on the Court’s docket.
/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge