Opinion

Geddings v. Social Security Administration

Court: District Court, E.D. Tennessee
Filed: Apr 5, 2023
Cited by: 0 cases
Authority: More cited than 29.6%

noting that conclusory claims of error without further argument or authority may be considered waived

How later courts described this case

noting that conclusory claims of error without further argument or authority may be considered waived
“Our review of the ALJ’s decision is limited to whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.”
“Our review of the ALJ’s decision is limited to whether the ALJ applied the correct legal standards and whether the findings 17 of the ALJ are supported by substantial evidence.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT WINCHESTER

THERESA ANN GEDDINGS, )

)

Plaintiff, )

)

v. ) No. 4:22-CV-13-DCP

)

KILOLO KIJAKAZI,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal

Rules of Civil Procedure, and the consent of the parties [Doc. 12]. Now before the Court are

Plaintiff’s Motion for Summary Judgment [Doc. 16] and Defendant’s Motion for Judgment on the

Administrative Record [Doc. 18]. Theresa Geddings (“Plaintiff”) seeks judicial review of the

decision of the Administrative Law Judge (“the ALJ”), the final decision of Defendant Kilolo

Kijakazi (“the Commissioner”). For the reasons that follow, the Court will DENY Plaintiff’s

motion and GRANT the Commissioner’s motion.

I. PROCEDURAL HISTORY

On August 20, 2018, Plaintiff filed an application for supplemental security income

benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., claiming a

period of disability that began on May 2, 2013 [Tr. 209–13]. After her application was denied

initially [Id. at 92–99] and upon reconsideration [Id. at 100–07], Plaintiff requested a hearing

1 Kilolo Kijakazi became the Acting Commissioner of the Social Security Administration

(“the SSA”) on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,

Kilolo Kijakazi is substituted for Andrew Saul as the defendant in this suit. See 42 U.S.C. § 405(g).

before an ALJ [Id. at 124]. A telephonic hearing was held before the ALJ on December 12, 2019

[Id. at 67–84]. During the hearing, the ALJ determined a consultative examination would be

necessary [Id. at 83]. On February 10, 2020, Plaintiff attended a consultative examination with

Stephen K. Goewey, M.D. (“Dr. Goewey”) [Id. at 1298]. On July 7, 2020, the ALJ held a second

telephonic hearing and heard testimony from a vocational expert [Id. at 52–65]. On August 4,

2020, the ALJ found that Plaintiff was not disabled [Id. at 41–47]. The Appeals Council denied

Plaintiff’s request for review on March 4, 2021 [Id. at 16–19], making the ALJ’s decision the final

decision of the Commissioner.

Having exhausted her administrative remedies, Plaintiff filed a Complaint with this Court

on March 3, 2022, seeking judicial review of the Commissioner’s final decision under Section

405(g) of the Social Security Act [Doc. 1]. The parties have filed competing dispositive motions,

and this matter is now ripe for adjudication.

II. ALJ FINDINGS

The ALJ made the following findings:

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

August 20, 2018, the application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: gastric ulcer

(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, I find that the

claimant has the residual functional capacity to perform the full

range of medium work as defined in 20 CFR 416.967(c).

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

6. The claimant was born on August 14, 1958 and was 60 years old,

which is defined as an individual closely approaching advanced age,

on the date the application was filed. The claimant subsequently

changed age category to advanced age (20 CFR 416.963).

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

416.964).

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

does not have past relevant work (20 CFR 416.968).

9. Considering the claimant’s age, education, 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 416.969(a)).

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

Social Security Act, since August 20, 2018, the date the application

was filed (20 CFR 416.920(g)).

[Tr. 43–47].

III. STANDARD OF REVIEW

When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision

was reached through application of the correct legal standards and in accordance with the

procedure mandated by the regulations and rulings promulgated by the Commissioner, and

whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,

581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,

544 (6th Cir. 2004).

Substantial evidence is “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.”

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

is immaterial whether the record may also possess substantial evidence to support a different

conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the

case differently. Crisp v. Sec’y of Health & Hum. Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).

The substantial evidence standard is intended to create a “‘zone of choice’ within which the

Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,

773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Additionally,

the Supreme Court has explained that “‘substantial evidence’ is a ‘term of art,’” and “whatever the

meaning of ‘substantial’ in other settings, the threshold for such evidentiary sufficiency is not

high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted). Rather, substantial

evidence “means—and means only— ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)).

Therefore, the Court will not “try the case de novo, nor resolve conflicts in the evidence,

nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation

omitted). On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes

v. Sec’y of Health & Hum. Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted). Furthermore,

the Court is not under any obligation to scour the record for errors not identified by the claimant

and arguments not raised and supported in more than a perfunctory manner may be deemed

waived. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (noting that conclusory

claims of error without further argument or authority may be considered waived).

IV. DISABILITY ELIGIBILITY

“Disability” means an individual cannot “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), 1382c(a)(3)(A). An individual will only be

considered disabled:

if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the

national economy, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he applied for work.

Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).

Disability is evaluated pursuant to a five-step analysis summarized as follows:

1. If claimant is doing substantial gainful activity, he is not disabled.

2. If claimant is not doing substantial gainful activity, his

impairment must be severe before he can be found to be disabled.

3. If claimant is not doing substantial gainful activity and is

suffering from a severe impairment that has lasted or is expected to

last for a continuous period of at least twelve months, and his

impairment meets or equals a listed impairment, claimant is

presumed disabled without further inquiry.

4. If claimant’s impairment does not prevent him from doing his

past relevant work, he is not disabled.

5. Even if claimant’s impairment does prevent him from doing his

past relevant work, if other work exists in the national economy that

accommodates his residual functional capacity (“RFC”) and

vocational factors (age, education, skills, etc.), he is not disabled.

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).

A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is

“based on all the relevant medical and other evidence in [the claimant’s] case record.” 20 C.F.R.

§§ 404.1520(a)(4), -(e), 416.920(a)(4), -(e). RFC is the most a claimant can do despite his

limitations. §§ 404.1545(a)(1), 416.945(a)(1).

The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.

The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must

prove that there is work available in the national economy that the claimant could perform. Her

v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,

146 (1987)).

V. ANALYSIS

Plaintiff raises two arguments on appeal as to why the ALJ’s decision should be remanded.

First, Plaintiff argues “[t]he RFC determination in this case is not supported by substantial

evidence because the ALJ rejected the opinion of Dr. Goewey, who performed the agency’s

internal medicine consultative examination, in reliance on state agency examiners who declined to

assess an RFC and who never saw Dr. Goewey’s report” [Doc. 17 p. 1]. Second, Plaintiff argues

“[t]he ALJ failed to comply with the regulations when she found Dr. Goewey’s opinion

unpersuasive without discussing the factors of supportability and consistency” [Id.]. The

Commissioner contends that Plaintiff’s arguments are without merit because the ALJ properly

evaluated the state agency medical consultant’s prior administrative medical findings, the ALJ

properly evaluated the consultative examiner’s medical opinion, and substantial evidence

otherwise supports the ALJ’s step five findings [Doc. 19 p. 1]. Having reviewed this matter and

considered the parties’ arguments, the Court finds Plaintiff has not presented a valid basis for

disturbing the Commissioner’s final decision, which applied the correct legal standards and

procedures and is otherwise supported by substantial evidence. The Court will take up Plaintiff’s

two arguments in reverse order.

A. Whether the ALJ Applied the Correct Legal Standards in Evaluating the

Persuasiveness of Dr. Goewey’s Opinion

Plaintiff argues “[t]he ALJ failed to comply with the regulations when she found Dr.

Goewey’s opinion unpersuasive without discussing the factors of supportability and consistency”

[Doc. 17 pp. 10–14]. Plaintiff cites 20 C.F.R. § 404.1520c to argue the Social Security

Administration has set forth the proper considerations to be used in evaluating medical opinion

evidence when establishing a claimant’s RFC, including that the ALJ must determine the

persuasiveness of each opinion by considering the factors of supportability, consistency,

examining relationship, and specialization, among others. [Id. at 10]. Plaintiff relates “that the

ALJ must articulate how supported and consistent the opined limitations are with the record” [Id.

at 11 (citing 20 C.F.R. § 404.1520c(b))]. Plaintiff argues the ALJ failed to satisfy the regulatory

articulation requirements in this case because she “rejected Dr. Goewey’s opinion on the basis of

her own independent medical knowledge” [Id. at 11–12], whereas Dr. Goewey’s opinion is

supported by evidence in the record [Id. at 12–13], and the ALJ otherwise failed to adequately

explain the reasoning behind her determinations [Id. at 13–14]. Plaintiff argues this error was not

harmless, as the Commissioner bears the burden to prove that there is work available in the national

economy that Plaintiff could perform [Id. at 14]. In response, the Commissioner argues that the

ALJ properly explained how she considered the factors of supportably and consistency in finding

Dr. Goewey’s opinion partially persuasive and did not otherwise insert her own independent

medical knowledge when evaluating the opinion [Doc. 19 pp. 20–21]. For the reasons discussed

below, the Court finds the ALJ applied the correct legal standards in her evaluation of Dr.

Goewey’s opinion.

1. Applicable Law

In determining a claimant’s RFC, an ALJ must consider all relevant medical and other

evidence, including medical opinion evidence. 20 C.F.R. § 404.1520(e). As of March 27, 2017,2

an ALJ must “evaluate the persuasiveness of medical opinions and prior administrative medical

findings” using five factors,3 the most important of which are supportability and consistency. Id.

§ 404.1520c(a), (b)(2). The ALJs are required to “articulate how [they] considered the medical

opinions and prior administrative medical findings” and specifically “explain how [they]

considered the supportability and consistency factors” in “determin[ing] how persuasive [they]

find a medical source’s medical opinions or administrative medical findings to be.” Id. §

404.1520c(a), (b)(2).

While “the Sixth Circuit has not elucidated a specific standard to determine whether an

ALJ sufficiently complied with the [articulation] requirement,” Gavre v. Comm’r of Soc. Sec., No.

3:20-CV-00551-DJH-CHL, 2022 WL 1134293, at *4 (W.D. Ky. Jan. 3, 2022) (Linsay, M.J.),

“[d]istrict courts applying the [] regulations both within this circuit and throughout the country

consistently apply the articulation requirement literally,” id., by requiring the ALJ to “provide a

2 For claims filed prior to March 27, 2017, the weight afforded a medical opinion generally

depended on whether the opinion was from “non-examining sources; examining but non-treating

sources; [or] treating sources.” See Underwood v. Soc. Sec. Admin., No. 3:16-cv-00546, 2017 WL

128518, at *5 (M.D. Tenn. Jan. 11, 2017) (citing 20 C.F.R. § 404.1527). Under the prior

regulations, “a treating physician's opinion [was] due ‘controlling weight’ if that opinion is ‘well-

supported by medically acceptable clinical and laboratory techniques and is not inconsistent with

the other substantial evidence in [the] record.’” Id. This was known as the “treating physician”

rule. Id.

3 The five factors include the (1) supportability and (2) consistency of the opinions or

findings, the medical source's (3) relationship with the claimant and (4) specialization, as well as

(5) “other factors” such as the “medical source’s familiarity with the other evidence in a claim”

and their “understanding of [the SSA’s] disability program’s policies and evidentiary

requirements.” 20 C.F.R. § 404.1520c(a), (c).

coherent explanation of [their] reasoning,” White v. Comm’r of Soc. Sec., No. 1:20-CV-00588-

JDG, 2021 WL 858662, at *21 (N.D. Ohio Mar. 8, 2021), “clearly explain [their] consideration of

the opinion and identify the evidence supporting [their] conclusions,” Lester v. Saul, No. 5:20-

CV-01364, 2020 WL 8093313, at *14 (N.D. Ohio Dec. 11, 2020), and otherwise “explain how

[they] considered the supportability and consistency factors as to each medical opinion.” Warren

I. v. Comm’r of Soc. Sec., No. 5:20-CV-495 (ATB), 2021 WL 860506, at *8 (N.D.N.Y. Mar. 8,

2021). In other words, the ALJ must “build an accurate and logical bridge between the evidence

and [the ALJ’s] conclusion.” Todd v. Comm’r of Soc. Sec., No. 3:20-cv-1374, 2021 WL 2535580,

at *6 (N.D. Ohio June 3, 2021) (quoting Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio

2011)).

2. Whether the ALJ Sufficiently Articulated Why She Found Dr.

Goewey’s Opinion Partially Persuasive

Dr. Goewey performed an examination of Plaintiff on February 10, 2020 [Tr. 1298].

Following the examination, Dr. Goewey prepared a three-page report that contained a summary of

Plaintiff’s history, the examinations he conducted, and his assessment of Plaintiff’s diagnoses [Id.

at 1298–1300]. Along with his report, Dr. Goewey completed a Medical Statement of Ability to

Do Work-Related Activities, in which he opined that claimant had certain work limitations [Id. at

1301–06]. The ALJ correctly summarized Dr. Goewey’s opined limitations as follows:

In February 2020, consultative examiner Dr. Goewey opined that the claimant

could lift and carry up to 50 pounds occasionally and up to 20 pounds frequently;

sit for one hour at a time or five hours total; stand for 30 minutes at a time of four

hours total; and walk for 30 minutes at a time or two hours [total].4 She could

frequently use her upper and lower extremities. She could occasionally climb, and

frequently balance, stoop, kneel, crouch, and crawl. She could frequently be

4 The ALJ stated that Dr. Goewey opined Plaintiff could “walk for 30 minutes at a time or

two hours at a time” [Tr. 46], whereas Dr. Goewey actually opined that Plaintiff could walk for

thirty minutes at a time or two hours total [Id. at 1032].

exposed to unprotected heights, moving mechanical parts, operating a motor

vehicle, and humidity and wetness. She could never be exposed to pulmonary

irritants or extreme temperatures (Ex. 3F).

[Id. at 46].5 The ALJ then evaluated the persuasiveness of Dr. Goewey’s opinion as follows:

I find [Dr. Goewey’s] opinion to be partially persuasive. Dr. Goewey’s opinion

that the claimant could lift and carry up to 50 pounds occasionally and up to 20

pounds frequently is supported by his examination report, in which he noted full

strength, normal gait, negative straight leg raise testing, and full range of motion in

all extremities (Ex. 3F). These limitations are also consistent with the lack of

objective medical evidence showing continued limitations (Ex. 1F, 2F). Dr.

Goewey’s findings that the claimant would have significant limitations in standing,

walking, sitting; postural activities; and environmental exposure are not supported

by his examination report. He noted no limitations in the claimant’s ability to walk,

sit, or stand. He noted normal respiratory findings so no evidence for

environmental limitations. He noted full strength and full range of motion of the

upper and lower extremities so no support for postural limitations (Ex. 3F). These

limitations are also not consistent with the lack of objective medical evidence

showing continued limitations (Ex. 1F, 2F).

[Id. at 46].

On appeal, Plaintiff argues “[t]his rationale does not satisfy the regulatory articulation

requirements” because the ALJ used “her own independent medical knowledge” to find some of

Dr. Goewey’s restrictions were not supported by his report and inconsistent with the remainder of

the record [Doc. 17 pp. 11–12]. Plaintiff’s argument is similar to one she makes at another point

in her supporting memorandum when she argues that the ALJ was impermissibly “playing doctor”

when evaluating the persuasiveness of Dr. Goewey’s opinion [Id. at 9 (citing Simpson v. Comm’r

of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009))].

5 Dr. Goewey also opined that Plaintiff did not need to use a cane to ambulate, she could be

exposed to loud noises, and she could perform various activities of daily life including shopping,

traveling with a companion, using public transportation, preparing meals, and sorting, handling,

or using paper files [Tr. 1301–06].

Contrary to Plaintiff’s arguments, the ALJ was not inserting her own independent medical

knowledge or “playing doctor” when evaluating Dr. Goewey’s opinion. Rather, she was doing

exactly what “the Simpson opinion makes clear that the ALJ is required to [do],” namely,

“dissect[ing] and examin[ing] the strengths and weaknesses of any medical opinion presented

during the administrative process,” Greene v. Kijakazi, No. 3:21-0050, 2022 WL 2706109, at *5

(M.D. Tenn. July 11, 2022) (quoting Simpson, 344 F. App’x at 194) by considering and articulating

how Dr. Goewey’s opinion was, and was not, supported by his own findings and consistent with

the other evidence in the record.

As to the supportability factor, section 404.1520c(c)(1) states, “[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). “In other words, the supportability analysis focuses on the

physician’s explanations of [his] opinions” and “whether [the physician] provided support or an

evidentiary basis for his medical opinions.” Vaughn v. Comm’r of Soc. Sec., No. 20-cv-1119-

TMP, 2021 WL 3056108, at *10 (W.D. Tenn. July 20, 2021) (internal quotations omitted). In this

case, the ALJ sufficiently articulated how Dr. Goewey’s opined limitations were, and were not,

supported by his own examination findings. Specifically, the ALJ stated that Dr. Goewey’s opined

lifting and carrying limitations were supported by his examination findings that Plaintiff had “full

strength, normal gait, negative straight leg raise testing, and full range of motion in all extremities,”

while Dr. Goewey’s opined standing, walking, and sitting limitations were not supported by his

examination findings that Plaintiff “no limitations in [her] ability to walk, sit or stand” [Tr. 46

(citing Ex. 3F)]. By citing how Dr. Goewey did, and did not, provide support or an evidentiary

basis for his opined limitations, the ALJ met the articulation requirements as it relates to the

supportability factor.

As to the consistency factor, section 404.1520c(c)(2) states, “[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).

Whether the ALJ sufficiently articulated the consistency factor often turns on whether they cited

specific evidence in the record that was, or was not, consistent with the medical opinion findings.

Compare Hague v. Comm’r of Soc. Sec., No. 20-13084, 2022 WL 965027, at *4 (E.D. Mich. Mar.

30, 2022) (finding ALJ sufficiently articulated the consistency factor with her “citation to the

specific documents in the record” that allowed “the Magistrate Judge to assess the reasoning

behind the ALJ’s assertion”), with King v. Kijakazi, No. 1:20-CV-196-TAV-HBG, 2021 WL

3520695, at *7 (E.D. Tenn. July 21, 2021) (finding the ALJ failed to sufficiently articulate the

consistency factor because he “failed to specifically cite to any examination findings or other

evidence in the medical record that rendered Dr. Goewey’s earlier opinion more consistent with

the medical record than his subsequent examination” such that the court could not engage in

meaningful review of the ALJ’s decision), report and recommendation adopted sub nom, 2021

WL 3516659 (E.D. Tenn. Aug. 10, 2021).

In this case, the ALJ found Dr. Goewey’s minimal lifting and carrying limitations “are []

consistent with the lack of objective medical evidence showing continued limitations” [Tr. 46

(citing Ex. 1F, 2F)], while his opined limitations in standing, walking sitting, postural activities,

and environmental exposure “are [] not consistent with the lack of objective medical evidence

showing continued limitations” [Id. (citing Ex. 1F, 2F)]. For both of these statements, the ALJ

cited specific exhibits in the record containing earlier treatment notes for Plaintiff. These

statements by the ALJ, with citations to specific exhibits in the record, sufficiently articulated the

consistency factor as to Dr. Goewey’s opinion. In addition, the ALJ had stated earlier in her

decision:

There is little evidence of continued symptoms or limitations following the

claimant’s discharge from the hospital. In fact, in July 2019, the claimant presented

with a skin boil. Other than the boil, physical findings were normal (Ex. 1F at 41).

In October 2019, the claimant presented with neck pain. Notably, she stated that

she had no abdominal pain (Ex. 1F at 45). She was assessed with acute neck pain

associated with radiculopathy of the upper cervical spine. She was prescribed

Flexeril and discharged in stable condition (Ex. 1F at 46).

[Id. at 45]. These additional statements add further clarity by indicating exactly what portions of

the exhibits are inconsistent with Dr. Goewey’s opined limitations.

Thus, the Court finds that the ALJ sufficiently articulated both the consistency and

supportability factors in evaluating the persuasiveness of Dr. Goewey’s opinion such that the ALJ

“buil[t] an accurate and logical bridge between the evidence and [the ALJ’s] conclusion.” Todd

v. Comm’r of Soc. Sec., No. 3:20-cv-1374, 2021 WL 2535580, at *6 (N.D. Ohio June 3, 2021)

(quoting Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio 2011)).6 The Court therefore

denies Plaintiff’s first basis for remand.

6 The Court construes Plaintiff’s argument that, “the substance of the ALJ’s rationale

provides nothing which casts doubt on the internal supportability of Dr. Goewey’s assessment and

that the ALJ’s rationale offers no genuine inconsistencies which undermine Dr. Goewey’s

opinion”—in support of which Plaintiff cites several portions of Dr. Goewey’s report—as an

argument about whether the ALJ reached the correct conclusions in applying the consistency and

supportability factors, as opposed to whether the ALJ properly applied the consistency and

supportability factors. Since this argument does not address whether the ALJ applied the correct

legal standard, it will be addressed as part of Plaintiff’s substantial-evidence argument discussed

in the next section. See Blakley, 581 F.3d at 406 (“Our review of the ALJ’s decision is limited to

whether the ALJ applied the correct legal standards and whether the findings of the ALJ are

supported by substantial evidence.”).

B. Whether the ALJ’s RFC Determination is Supported by Substantial Evidence

Plaintiff argues the ALJ’s decision should also be remanded because the ALJ’s RFC

determination is not supported by substantial evidence [Doc. 17 pp. 6–10]. In support of this

argument, Plaintiff challenges the ALJ’s characterization of the state agency medical consultants’

opinions [id. at 7–8], the ALJ’s evaluation of Dr. Goewey’s opinion [id. at 8–9], and the ALJ’s

overall RFC determination to the extent “the ALJ [incorrectly] rejected the opinion of Dr. Goewey

. . . in reliance on state agency examiners” and “craft[ed] an RFC that was not based on any medical

opinion” [id. at 9]. The Commissioner responds that the ALJ properly characterized the state

agency consultants’ opinions and any mischaracterization was harmless; the ALJ’s evaluation of

Dr. Goewey’s opinion was supported by substantial evidence; the ALJ did not reject Dr. Goewey’s

opinion “in reliance on” the state agency medical consultants; and the ALJ was not required to

base Plaintiff’s RFC on any medical opinion [Doc. 19 pp. 14–20]. For the reasons discussed

below, the Court finds the ALJ’s RFC determination is supported by substantial evidence and

remand is not otherwise warranted.

1. The ALJ’s Characterization of the State Agency Consultants’ Opinions

In arguing the ALJ’s RFC determination is not supported by substantial evidence, Plaintiff

first challenges the ALJ’s characterization of the state agency medical consultants’ opinions.

Specifically, Plaintiff challenges the ALJ’s statement, “[t]he State agency medical consultants

opined that the claimant had no severe impairments” [Tr. 46]. Plaintiff argues the ALJ’s statement

mischaracterizes the evidence because the state agency medical consultants “did not opine that the

claimant had no severe impairments,” but, rather, found insufficient evidence in the file to rate the

severity of Plaintiff’s impairments [Doc. 17 p. 7 (citing Tr. 95, 103–04)]. Plaintiff argues that the

ALJ’s mischaracterization of the evidence warrants remand under Keeton v. Commissioner of

Social Security, 583 F. App’x 515 (6th Cir. 2014) [Doc. 17 pp. 7–8].

In response, the Commissioner argues that “[w]hile Plaintiff is correct that the state agency

medical consultants found that the record was insufficient to rate the severity of the impairments,

the ALJ was not mistaken in her statement” because “[a]t both the initial and reconsideration levels

of agency review, Plaintiff’s primarily medically determinable impairment of ‘5690 – Other

Disorders of Gastrointestinal System’ was rated as ‘non severe’” [Doc. 19 p. 14 (quoting Tr. 96,

104)]. Moreover, the Commissioner argues that “even if the ALJ had mischaracterized the

findings, Plaintiff failed to show remand would be warranted” because the ALJ’s

mischaracterization, unlike the ALJ’s mischaracterization in Keeton, does not call into question

whether the ALJ would have reached the same conclusions absent the mischaracterization [Id. at

16–17].

The Court finds that the ALJ mischaracterized the findings of the state agency medical

consultants, but that such mischaracterization does not warrant remand. Plaintiff is correct that

the state agency medical consultants found insufficient information in the record to rate the

severity of Plaintiff’s impairments. State agency consultant Dr. Montague-Brown stated, “there is

insufficient MER and functional evidence in the file to rate the severity of impairment(s)” [Tr. 95],

while state agency consultant Dr. Pennington stated, “[t]he prior physical assessment completed

by DDS at the initial level has been reviewed and found persuasive as it is supported by and

consistent w[ith] lack of sufficient evidence with which to assess [the] claim properly” [Id. at 103–

04]. It was the disability adjudicators, in reviewing the findings of Dr. Montague-Brown and Dr.

Pennington, who found that Plaintiff did not have an impairment, or combination of impairments,

that was severe [Id. at 96-98 (citing Dr. Montague-Brown’s statements and rating Plaintiff’s

impairment “5690 – Other Disorders of Gastrointestinal System” as “Non Severe”); id. at 104-106

(citing Dr. Pennington’s statements and making the same non-severe finding as to impairment

5690)].

Whether an ALJ’s misstatement or mischaracterization requires remand, however, depends

on the extent to which the ALJ relied on the misstatement or mischaracterization in their

subsequent analysis and findings. In Keeton, for example, the Sixth Circuit found the ALJ made

several errors when evaluating the persuasiveness of a medical opinion, including

“mischaracterizing the record, support[ing] her conclusion with inaccurate and improper

reasoning, and ignor[ing] the opinions of [other experts].” Keeton, 583 F. App’x at 527–28. These

errors, in turn, were the primary bases on which the ALJ had based his evaluation of the medical

opinion. See id. at 525–28 (quoting the ALJ as rejecting the medical opinion because of the

mischaracterized statement, improper reasoning, and the perceived lack of other supporting expert

evidence). In remanding the ALJ’s decision, the Sixth Circuit stated that “it [was] not clear that

the ALJ would have come to the same conclusion” if not for these errors. See id. at 527.

In contrast, the Sixth Circuit in Noto v. Commissioner of Social Security, found that the

ALJ’s misstatement of the record did not require remand. 632 F. App’x 243, 247 n.2 (6th Cir.

2015). There, the ALJ stated in their decision that one of the plaintiff’s treating physicians had

documented that Plaintiff did not experience “any” back pain during pregnancy, whereas the

physician actually documented that the plaintiff had “not a lot of” back pain. See id. While

acknowledging that the ALJ had made a misstatement, the Sixth Court declined to remand on that

basis because “[t]he difference between ‘any’ and ‘not a lot of’ is slight” and “[t]he important and

reasonable point the ALJ derived from [the physician’s] note [was] that Plaintiff apparently did

not complain about experiencing a disabling level of back pain during her pregnancy.” Id.

In this case, the ALJ did not rely on her misstatement of the state agency medical

consultants’ opinions in evaluating the persuasiveness of their opinions or otherwise formulating

Plaintiff’s RFC. Immediately after making the statement Plaintiff now challenges on appeal, the

ALJ stated:

I find these opinions [by the state agency medical consultants] to be partially

persuasive. These consultants supported their opinions with reference to the record,

and with their knowledge of program requirements. Their opinions are generally

consistent with the lack of objective medical evidence in the record, and the

claimant’s apparent improvement following hospitalization (Ex. 1F, 2F). Based on

the claimant’s subjective representations, however, and the consultative examiner

who noted some minimal physical findings, I find that the evidence is consistent

with the claimant being limited to medium work.

[Id. at 46]. These later statements show that the important and reasonable point that the ALJ

derived from the state agency medical consultants’ opinions was not that Plaintiff lacked a severe

impairment but, rather, that the consultants’ opinions showed a general lack of objective medical

evidence in the record. In fact, the ALJ ultimately found Plaintiff did have a severe impairment

[Id. at 45]. Thus, unlike the ALJ in Keeton, the ALJ did not rely on her mischaracterization of the

state agency consultants’ findings in her subsequent analysis but, instead, reached the opposite

conclusion. Accordingly, Plaintiff has failed to state a sufficient basis for remand based on the

ALJ’s mischaracterization.

2. The ALJ’s Evaluation of Dr. Goewey’s Opinion

Plaintiff next challenges the ALJ’s evaluation of Dr. Goewey’s consultative examination

opinion. Since the Court has already determined that the ALJ applied the correct legal standards

when evaluating Dr. Goewey’s opinion, review is limited to whether the ALJ’s evaluation is

supported by substantial evidence. See Blakley, 581 F.3d at 405 (“Our review of the ALJ’s

decision is limited to whether the ALJ applied the correct legal standards and whether the findings

of the ALJ are supported by substantial evidence.”). In arguing the ALJ’s evaluation of Dr.

Goewey’s opinion was not supported by substantial evidence, Plaintiff asserts that “the record

lacks any medical opinion evidence to contradict Dr. Goewey’s opinion, at all—not even a

scintilla” [Doc. 17 p. 8]; that the ALJ impermissibly played doctor by second-guessing Dr.

Goewey’s medical expertise in favor of an absence of post-discharge objective findings [Id. at 9];

and that Dr. Goewey’s review of the records, experience as an internal medicine physician, and

examination findings otherwise support his opinion [Id. at 12–13]. In response, the Commissioner

maintains that the lack of medical opinion evidence contradicting Dr. Goewey’s opinion is not

dispositive, as the ALJ must also consider other medical and nonmedical evidence [Doc. 19 pp.

18–19], and the ALJ did not otherwise impermissibly “play doctor” in this case but, rather,

“properly performed the required regulatory analysis” [Id. at 20–21].

Plaintiff argues the ALJ’s evaluation of Dr. Goewey’s opinion is erroneous because there

is no medical opinion evidence in the record that contradicts Dr. Goewey’s findings [Doc. 17 p.

8]. However, an ALJ is not limited to considering only other medical opinion evidence when

evaluating the persuasiveness of a medical opinion or otherwise determining a Plaintiff’s RFC.

See, e.g., Fancher v. Kijakzi, No. 2:20-CV-198-TRM-JEM, 2022 WL 824024, at *11 (E.D. Tenn.

Feb. 18, 2022) (finding the ALJ sufficiently articulated the consistency factor by citing to the

evidence of record and Plaintiff’s own admissions in addition to other medical opinions); Reinartz

v. Comm’r of Soc. Sec., 795 F. App’x 448, 449 (6th Cir. 2020) (“An ALJ must consider ‘all the

relevant evidence in the record’—medical and non-medical alike—to determine a claimant’s work

capacity” (quoting 20 C.F.R. § 1545(a)(1))). Rather, the plain language of the regulations make

clear the ALJ is to consider how consistent the medical opinion “is with the evidence from other

medical sources and nonmedical sources. ” 20 C.F.R. § 416.920c(c)(2).

In this case, the ALJ properly relied on evidence from other medical sources and

nonmedical sources in finding Dr. Goewey’s opinion was only partially persuasive. Specifically,

the ALJ found Dr. Goewey’s standing-walking-sitting, postural, and environmental exposure

limitations “are also not consistent with the lack of objective medical evidence showing continued

limitations” [Tr. 46 (citing Ex. 1F, 2F)]. Exhibits 1F and 2F, in turn, are Plaintiff’s “Medical

Evidence of Record, dated 02/15/2016 to 10/05/2019, from Lincoln Medical Center” and

“Inpatient Hospital Records, dated 07/06/2018 to 07/28/2018, from Maury Regional Medical

Center” [Id. at 4]. While these records span several hundred pages, the ALJ clarified in an earlier

portion of her decision which parts of these exhibits show Dr. Goewey’s opined limitations are not

consistent with the lack of objective medical evidence showing continued limitations.

Specifically, the ALJ stated,

[Plaintiff] was discharged on July 28, 2018 with the following diagnoses:

abdominal pain likely secondary to large fluid collection likely due to acute

pancreatitis/pancreatic pseudocyst, status post percutaneous drain placement and

removal; SBO; gastric ulcer, likely partial obstruction; pneumonia; sepsis; acute

hypoxic respiratory failure, resolved; AKI due to SIRS/pancreatitis; CP associated

with elevated BNP and troponin, likely demand ischemia; tobacco abuse; and

insomnia (Ex. 2F at 6).

There is little evidence of continued symptoms or limitations following the

claimant’s discharge from the hospital. In fact, in July 2019, the claimant presented

with a skin boil. Other than the boil, physical findings were normal (Ex. 1F at 41).

In October 2019, the claimant presented with neck pain. Notably, she stated that

she had no abdominal pain (Ex. 1F at 45). She was assessed with acute neck pain

associated with radiculopathy of the upper cervical spine. She was prescribed

Flexeril and discharged in stable condition (Ex. 1F at 46).

[Id. at 45].

This evidence, which includes a clinical report from October 2019 indicating Plaintiff had

no abdominal pain as well as other reports following her July 28, 2018 discharge that were devoid

of any indication of abdominal pain, is substantial evidence supporting both the ALJ’s finding that

Dr. Goewey’s opinion was only partially persuasive, as well as her overall RFC determination.

See Barton v. Comm’r of Soc. Sec., No. 2:20-cv-2182, 2021 WL 1380258, at *5 (S.D. Ohio Mar.

25, 2021) (finding substantial evidence supported the ALJ’s conclusion that a physician’s medical

opinion was unpersuasive when the ALJ cited the fact that the claimant themselves had not

complained of any pain).

Plaintiff next argues that the ALJ “second-guessed Dr. Goewey’s professional medical

expertise with regard to clinical observations and relied on the absence of post-discharge objective

findings to reject his opinion” [Doc. 17 p. 9]. Plaintiff argues “[t]his manner of playing doctor is

impermissible” [Id. (citing Simpson, 344 F. App’x at 194)]. Contrary to Plaintiff’s arguments, the

Court finds that the ALJ did not impermissibly “play doctor” or substitute her own independent

judgment in finding Dr. Goewey’s opinion to be only partially persuasive. As discussed

previously, the ALJ was doing exactly what “the Simpson opinion makes clear that the ALJ is

required to [do],” namely, “dissect[ing] and examin[ing] the strengths and weaknesses of any

medical opinion presented during the administrative process,” Greene, 2022 WL 2706109, at *5

(quoting Simpson, 344 F. App’x at 194). Along these lines, the ALJ does not make improper

“independent findings” when the ALJ considers all the relevant evidence in the record, including

medical source opinions and other medical and non-medical evidence, and reaches a conclusion

that is supported by substantial evidence. See Reinartz, 795 F. App’x at 449 (rejecting the

plaintiff’s argument that the ALJ relied on his own “independent findings” instead of the record

when the ALJ considered all relevant medical and non-medical evidence, including the medical

opinion evidence, accounted for some of the limitations in the medical opinion evidence, and

considered the medical opinions in conjunction with the plaintiff’s own statements). For the

reasons already discussed, that is exactly what the ALJ did here.

Finally, Plaintiff argues that Dr. Goewey’s opinion is supported by his examination of the

record, his examination findings, and his medical expertise. However, it is irrelevant whether the

plaintiff “disagrees with the ALJ’s findings,” id. or points to other evidence in the record that

would support their conclusion. “An administrative decision is not subject to reversal merely

because substantial evidence would have supported an opposite decision.” Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984));

see Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713–14 (6th Cir. 2012) (“As long as the ALJ

cited substantial, legitimate evidence to support his factual conclusions, we are not to second-

guess: ‘If the ALJ's decision is supported by substantial evidence, then reversal would not be

warranted even if substantial evidence would support the opposite conclusion.’”) (quoting Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Thus, Plaintiff has failed to articulate a sufficient

basis for remand as a result of the ALJ’s evaluation of Dr. Goewey’s opinion.

3. The ALJ’s RFC Determination

Along with challenging the ALJ’s characterization of the state agency medical consultants’

opinions and Dr. Goewey’s consultative examination findings, Plaintiff also challenges how the

ALJ evaluated these medical opinions in combination when determining Plaintiff’s overall RFC.

Specifically, Plaintiff argues “[t]he RFC determination in this case is not supported by substantial

evidence because the ALJ rejected the opinion of Dr. Goewey . . . in reliance on state agency

examiners who declined to assess an RFC and who never saw Dr. Goewey’s report” [Doc. 17 p.

9]. She further argues that the ALJ erred by “crafting an RFC that was not based on any medical

opinion” [Id.]. Finally, Plaintiff argues that these errors are not harmless as “[t]here are significant

exertional and non-exertional restrictions included in the assessment by Dr. Goewey, and this

record does not contain vocational testimony which could carry the Commissioner’s burden at the

final step in the sequential evaluation” [Id.]. For the reasons discussed below, the Court finds that

the ALJ’s RFC determination is supported by substantial evidence and remand is not warranted.

As to Plaintiff’s argument that the ALJ erred by rejecting Dr. Goewey’s opinion “in

reliance on” the state agency medical consultants, the Commissioner responds that, "[t]he ALJ did

not cite to the state agency medical consultants’ findings as a reason for finding Dr. Goewey’s

opinion to be partially persuasive. In fact, she did not rely on the state agency medical consultants’

findings for any of her conclusions” [Doc. 19 p. 18]. The Commissioner is correct. The ALJ did

not reject Dr. Goewey’s opinion “in reliance on” the state agency consultants’ opinions. As cited

previously, the ALJ provided the following reasons for discounting Dr. Goewey’s opinion: