Swedren v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CASE NO. 1:24-cv-796

LISA M. SWEDREN,

DISTRICT JUDGE

Plaintiff, Charles Esque Fleming

vs. MAGISTRATE JUDGE

James E. Grimes Jr.

COMMISSIONER OF SOCIAL

SECURITY,

REPORT &

Defendant. RECOMMENDATION

Plaintiff Lisa M. Swedren filed a Complaint against the Commissioner

of Social Security seeking judicial review of its decision denying supplemental

security income (SSI). Doc. 1. This Court has jurisdiction under 42 U.S.C. §§

405(g) and 1383(c). The Court referred this matter to a Magistrate Judge under

Local Rule 72.2(b)(1) for the preparation of a Report and Recommendation.

Following review, and for the reasons stated below, I recommend that the

District Court vacate the Commissioner’s decision and remand for proceedings

consistent with this recommendation.

Procedural background

Previous applications. In April 2015, Swedren filed an application for

SSI benefits. Tr. 68. Her application was denied initially and on

reconsideration. Id. In November 2015, Swedren requested a hearing before an

administrative law judge (ALJ). Id. In May 2017, the ALJ held a hearing. Id.

In June 2017, the ALJ issued a decision denying Swedren’s application. Tr. 65–

79. Swedren did not appeal this decision to the Appeals Council and the time

for appeal of the June 2017 has passed. The ALJ’s June 2017 decision is thus

the final decision of the Commissioner as to her April 2014 application.

Present application. In October 2018, Swedren filed an application for

SSI benefits alleging a disability onset date1 in October 2018.2 Tr. 303–308.

The Commissioner denied this application both initially and on

reconsideration. Tr. 123–26, 155–56. In December 2019, Swedren requested a

hearing before an ALJ. Tr. 206. In August 2021, ALJ Jeffery Raeber conducted

a telephonic hearing. Tr. 35–64. In October 2021, ALJ Raeber issued a decision

denying benefits. Tr. 10–30. In August 2022, the Appeals Council declined

review, making ALJ Raeber’s decision the final decision of the Commissioner.

Tr. 1–6; see also 20 C.F.R. § 404.981.

In November 2022, Swedren filed a Complaint against the

Commissioner, docketed as case no. 5:22-cv-1952, challenging ALJ Raeber’s

decision. See Tr. 918–922. In April 2023, by stipulation of the parties under

Sentence Four of Section 205 of the Social Security Act, 42 U.S.C. § 405(g), this

Court remanded the matter. Tr. 923; see also Tr. 939–941.

1 “Once a finding of disability is made, the [agency] must determine the

onset date of the disability.” McClanahan v. Comm’r of Soc. Sec., 193 F. App’x

422, 425 (6th Cir. 2006).

2 Swedren’s counsel clarified during her hearing before ALJ Panek that

her amended onset date for the benefits application at issue was October 3,

2018. Tr. 874–75.

In July 2023, the Appeals Council issued an order, which vacated ALJ

Raeber’s October 2021 decision and remanded Swedren’s case for further

consideration and proceedings. Tr. 944–46. The Appeals Council’s Order

detailed the issues to be addressed on remand as follows:

The hearing decision indicates that the

claimant is capable of a reduced range of light

work with nonexertional limitations and is

capable of jobs that exist in significant

numbers in the national economy (Findings 4

and 9). There is a prior Administrative Law

Judge decision dated June 26, 2017. The

Appeals Council finds the required analysis

concerning Social Security Acquiescence

Ruling AR 98-4 (6) (Drummond v.

Commissioner of Social Security, 126 F.3d 837

(6th Cir. 1997) is not sufficient in this case.

The Administrative Law Judge states that he

is bound by the prior decision from June 26,

2017, in making a finding on the residual

functional capacity since no new and material

evidence exists and there has been no change

in the law, regulations or rulings affecting the

findings or the method for arriving at the

finding (Decision, page 1). Then, the

Administrative Law Judge adopts an almost

identical reduced light residual functional

capacity consistent with the finding in the

prior decision from June 6, 2017, although it

does note simple, routine, and repetitive tasks

whereas the prior decision notes unskilled

work which is slightly different (Decision,

page 6).

The Administrative Law Judge does not state

how new and material evidence still dictates

an almost identical residual functional

capacity from the prior decision from June 26,

2017. New and material evidence notes new

severe impairments of degenerative disc

disease and hypothyroidism which are found

in the decision (Decision, page 2). Treatment

records concerning degenerative disc disease

since the prior decision include an x-ray of the

lumbar spine from June 11, 2018, that

establishes mild degenerative disc disease

(Exhibit D3F, page 20) and radiating pain

from the lumbar spine into her leg (Exhibit

D3F, page 3). Claimant underwent physical

therapy in February 2020 (Exhibit D10F,

pages 1-5 and D13F) and chiropractic

treatment (Exhibit D11F) for continued

complaints of lumbar spine pain. Late 2020

and early 2021 treatment notes showed

complaints of back pain with continued

complaints of decreased range of motion

(Exhibit 20F, page 17). Consideration of this

new and material evidence is necessary to

determine the claimant's functional abilities.

In addition, a changes in the regulations

occurred since the prior decision in terms of

evaluating opinion evidence. On March 27,

2017, revisions in the rules concerning the

evaluation of medical evidence took effect

(HALLEX I-5-3-30). According to these

revised regulation, the current rules apply to

the claim under review as the claim was filed

on October 3, 2018. The prior rules would

apply to the decision from June 26, 2017, as

that claim was filed on April 16, 2015. This

reflects a change in law not contemplated by

the Administrative Law Judge when

considering the prior decision (Decision, page

1).

Thus, although the decision does apply Social

Security Acquiescence Ruling AR 98-4 (6) as

required in making a finding on the residual

functional capacity, the decision does not note

the new and material evidence or the changes

in law in evaluating whether the residual

functional capacity from the prior decision

should be adopted.

The hearing decision does not contain an

adequate evaluation of the opinion evidence.

Emir Emley, D.C. opined claimant can

perform tasks if claimant is limited to lifting,

carrying, and pushing less than 10 pounds or

given breaks as needed for stretching and to

prevent muscle overuse (Exhibit 6F, page 1).

The Administrative Law Judge does not

evaluate the persuasiveness of this opinion

(Decision, page 10). In addition, although the

Administrative Law Judge does evaluate the

consistency of the opinion with other

evidence, the supportability of the opinion is

not evaluated (Decision, page 10). In support,

Dr. Emley notes scoliosis of the cervical and

thoracic region along with deficits in range of

motion in the cervical and lumbar spine

(Exhibit D6F, page 1). Consideration of the

persuasiveness of the opinion of Dr. Emley

along with the support provided is required.

Tr. 944–45. And the Appeals Council ordered:

In accordance with Social Security

Acquiescence Rulings 98-3(6) (Dennard v.

Secretary of Health and Human Services) and

98-4(6) (Drummond v. Commissioner of Social

Security), the Administrative Law Judge will

provide rationale why any new evidence is or

is not material to a particular finding

including the residual functional capacity and

consider any changes to the law, regulation,

or rulings in this rationale (HALLEX I-5-4-

62).

Reevaluate the evidence and give further

consideration to the claimant's maximum

residual functional capacity during the entire

period at issue and provide rationale with

specific references to evidence of record in

support of assessed limitations (Social

Security Ruling 96-8p). In so doing, evaluate

the medical source opinion(s) pursuant to the

provisions of 20 CFR 416.920c.

If warranted by the expanded record, obtain

evidence from a vocational expert to clarify

the effect of the assessed limitations on the

claimant's occupational base (Social Security

Ruling 83-14). The hypothetical questions

should reflect the specific capacity/limitations

established by the record as a whole. The

Administrative Law Judge will ask the

vocational expert to identify examples of

appropriate jobs and to state the incidence of

such jobs in the national economy (20 CFR

416.966). Further, before relying on the

vocational expert evidence the

Administrative Law Judge will identify and

resolve any conflicts between the occupational

evidence provided by the vocational expert

and information in the Dictionary of

Occupational Titles (DOT) and its companion

publication, the Selected Characteristics of

Occupations (Social Security Ruling 00-4p).

Tr. 945–46.

In December 2023, under the above-described remand order, ALJ Jason

Panek held a telephonic hearing. Tr. 868–896. In February 2024, ALJ Panek

issued a decision denying Swedren’s October 2018 application. Tr. 841–867.

Swedren immediately appealed ALJ Panek’s decision to this Court. Doc. 1.

Evidence3

1. Personal, Educational, Vocational

Swedren was born in 1970, making her 44 years old on her alleged onset

date. See Tr. 925. She has no formal education beyond ninth grade. See Tr. 926.

3 The recitation of evidence is not intended to be exhaustive and is

generally limited to the evidence cited in the parties’ briefs.

2. Medical Evidence

From November 2014 through, at least, September 2018, Emley

Chiropractic treated Swedren. Tr. 596–603. In March 2019, Dr. Emley wrote a

letter describing Swedren’s treatment for joint and muscle pain and related x-

ray imaging of Swedren’s spine. Tr. 635, 1169.

In June 2016, Dr. Corina Freitas, Swedren’s physician and counselor of

two years, completed a psychological assessment for purposes of Swedren’s

disability application. Tr. 1166–1167. Dr. Freitas found that Swedren had

several paranoid delusional thoughts “of religious type” along with poor insight

and judgment. Tr. 1167. Dr. Freitas listed Swedren’s psychological diagnoses

as severe bipolar I disorder with psychosis, situational anxiety, insomnia, and

body dysmorphic disorder. Id.

Community Mental Health Care provided three letters describing

Swedren’s treatment with various providers at that organization. See Tr. 469,

645, 747. An August 2017 letter related that providers with this organization

had treated Swedren since August 2017 for her major depressive disorder,

general anxiety disorder, and PTSD. Tr. 469. But it described that Swedren’s

appointments were interrupted and sporadic because she was nearly homeless

and moved often from one relative to another. Id. A September 2019 letter

reported that Swedren split her time between living with her mother and

father, the latter of whom lived in another state. Tr. 645. Swedren regularly

attended her bi-weekly counseling sessions when she resided with her mother.

Id. An August 2021 letter stated that Swedren attended sessions every two

weeks for her anxiety and was “very cooperative with keeping her

appointments and is very open to suggestion on development of coping skills

and boundaries to help her in in everyday life.” Tr. 747.

In October 2017, Dr. Mark Pellegrino, Swedren’s pain management

provider, referred Swedren to a physical therapist to address her lower back

pain. Tr. 450–468. During an April 2020 appointment with Dr. Pellegrino,

Swedren had pain in at least 11 of 18 tender points. Tr. 748–50. Dr. Pellegrino

assessed fibromyalgia and muscle spasms. Tr. 748–50. In September 2022,

Swedren continued to attend pain management appointments to address her

chronic low back pain. Tr. 1293.

Throughout her primary care treatment, Swedren reported depression,

fatigue, anxiety, bipolar disorder, memory loss, backaches, joint pain, and joint

stiffness. See e.g., Tr. 671–76, 683, 798, 801. In May 2019, Swedren presented

to a hospital emergency department with complaints of back pain. Tr. 629.

During an October 2023 primary care examination, Swedren reported chronic

pain, gastroesophageal reflux disease, thyroid disease, anxiety, obsessive

compulsive disorder, bipolar disorder, and rage in response to noises. Tr. 1473,

1548.

In March 2020, Dr. Daniel Moretta examined Swedren for her lumbar

symptoms and diagnosed her with lumbago.4 Tr. 654–658. Dr. Moretta referred

Swedren for six weeks of physical therapy. Tr. 655.

In April 2020, Certified Nurse Practitioner, Megan Hawk, completed an

initial psychiatric evaluation. Tr. 725–731. Swedren reported anxiety, irritable

mood, flight of ideas, pressured speech, and paranoia. Tr. 726. Nurse

Practitioner Hawk diagnosed Swedren with PTSD and associated depression,

mood swings, anxiety, and panic attacks. Tr. 730.

In February 2023, Swedren had another psychiatric evaluation. Tr.

1336–67. Swedren described frequent, severe mood swings between low mood

and anger with daily angry outbursts, broken sleep, worthlessness,

hopelessness, guilt, limited concentration, and daily suicidal ideation. Tr.

1366–1367. She also conveyed severe anxiety with manic symptoms and

psychosis. Tr. 1367. April 2023 progress notes from Swedren’s mental health

provider, reflected that Swedren’s goal was to increase her level of functioning

and to have more good days. Tr. 1405.

In September 2020, Renal Consultants, Inc. examined Swedren and

assessed that she likely had acute renal failure. Tr. 817–18.

In February 2021, Swedren sought treatment from a different

chiropractic office, Grubbs Family Chiropractic, for her neck and back pain,

4 Lumbago is a nonmedical term for any pain in the lower back. See

Dorland’s Illustrated Medical Dictionary 1062 (33rd ed. 2020).

which she claimed were caused by her activities of daily living. Tr. 1192.

Swedren’s goals for this chiropractic treatment were to promote proper

alignment and function, improve strength and conditioning, and reduce pain.

Tr. 1195.

In April 2022, Swedren underwent a lumbar MRI. Tr. 1204–1205. Her

MRI showed mild central canal stenosis, bilateral lateral recess, and moderate

right foraminal narrowing with possible impingement of the exiting right L45

nerve root. Tr. 1205.

In June 2022, Swedren presented to Dr. Moretta for a “recheck of her

lumbar symptoms.” Tr. 1250. She reported a 70% improvement after an

injection at her last visit but described constant aching in her lower back and

both hips with occasional burning in her hips. Id. Dr. Moretta diagnosed

gluteal tendinitis in the right hip and somatic dysfunction of Swedren’s

sacroiliac region. Tr. 1251.

5 Vertebrae in a person’s spine are given letter and number designations

according to their location. The neck—the cervical spine—has seven vertebrae

designated as C1 through C7. See Thomas Scioscia, M.D., Vertebrae in the

Vertebral Column, Spine-health Resources, https://www.spine-

health.com/conditions/spine-anatomy/vertebrae-vertebral-column

[https://perma.cc/R9MM-TBZT]. The twelve vertebrae compromising the upper

spine—the thoracic spine—are labeled at T1 through T12. Id. The five

vertebrae in the lower spine—the lumbar spine—are L1 through L5. Id. The

five vertebrae at the bottom of the spine—in the sacrum—are labeled as S1

through S5. Thomas Scioscia, M.D., Sacrum (Sacral Region), Spine-health

Resources, https://www.spine-health.com/conditions/spine-anatomy/sacrum-

sacral-region [https://perma.cc/S2BR-RBTB].

In May 2023, Swedren received x-ray imaging of her lumbar spine,

which revealed degenerative disc and facet disease at L4/5 and L5/S1 including

grade 1 anterolisthesis at L4 to L5. Tr. 1430. She also had imaging of her

cervical spine, which showed evidence of multilevel degenerative disc disease

in her cervical spine most significant at C5/C6. Tr. 1432.

3. State Agency Reviewers

In November 2018, state agency reviewing physician Gail Multcher,

M.D., adopted the residual functional capacity (RFC)6 set out in the ALJ’s June

2017 decision. Tr. 98. Dr. Multcher found in particular that Swedren had the

residual functional capacity to perform light work except she could never climb

ladders, ropes, or scaffolds; could occasionally crawl and climb ramps or stairs;

frequently stoop, kneel, and crouch; frequently handle and finger objects

bilaterally; could have frequent exposure to pulmonary irritants and poor

ventilation; and, that she must avoid the use of moving machinery, commercial

driving, and unprotected heights. Tr. 98. In setting out these findings, Dr.

Multcher stated that she considered the medical evidence from the period

between the previous ALJ’s decision and when she issued her findings and

determined that no new and material evidence in the record supported a

6 An RFC is an “assessment of” a claimant’s ability to work, taking his or

her “limitations … into account.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235,

239 (6th Circ. 2002). Essentially, it is the Social Security Administration’s

“description of what the claimant ‘can and cannot do.’” Webb v. Comm’r of Soc.

Sec., 368 F.3d 629, 631 (6th Cir. 2004) (quoting Howard, 276 F.3d at 239).

change in Swedren’s RFC. Id. On reconsideration, Leon Hughes, M.D. affirmed

Dr. Multcher’s findings in whole. Tr. 115–16.

4. Hearing Testimony

In December 2023, ALJ Panek held a telephonic hearing. Tr. 869–96.

Swedren confirmed that she still experienced the pain and mental health

issues that she described to ALJ Raeber during her earlier hearing. Tr. 876–

77. She clarified that her symptoms had worsened from October 2021,

specifically that her back pain worsened in that time. Tr. 877.

Swedren testified that she could stand in one place for about 10 minutes,

sit in one place for 10 to 15 minutes, and walk for 20 to 30 minutes, but “after

that it’s way too much” and she would need to lie down flat because her muscles

would spasm. Tr. 877–81. She described hip and leg pain and that her pelvis

went out of place which caused her to be “off kilter.” Tr. 878. Swedren explained

that she is “most comfortable laying down or like reclining” and that she used

various techniques to alleviate her back pain, including heating her back, using

a foam roller, or doing stretches that her physical therapist gave her. Tr. 881.

She stated that she cannot lift more than five pounds and that she could not

lift a gallon of milk. Id. When asked if other day-to-day activities aggravated

her pain, Swedren expressed that she had severe noise sensitivity and

exposure to loud sounds aggravated her physical pain. Tr. 882–83. She also

said that doing dishes or dusting aggravated her pain. Tr. 883. Swedren

testified that certain therapeutic treatments, like physical therapy and

chiropractic adjustments, helped. Tr. 884. She also said that certain

medications helped, but others made her tired or “feel like a zombie the next

day.” Tr. 884–85.

Swedren explained that her “anxiety gets worse all the time” and that

her pain and mental health triggers “play off each other[,]” such that when she

is anxious it also causes her physical pain to get worse. Tr. 885. She described

that her bipolar disorder, specifically manic episodes, caused her to talk louder

and louder without realizing and that she became embarrassed when someone

pointed out her rapid speech and volume. Tr. 886. Swedren also testified that

she had body dysmorphic disorder, was depressed all the time, and had panic

attacks. Tr. 886–87.

Swedren described migraine headaches one to two times a week, Tr. 888,

and problems with concentration along with short-term memory problems and

difficulty thinking, Tr. 890. She also stated that she sometimes doesn’t get

dressed or shower and that she washes her hair twice per month. Tr. 891.

5. Vocational Expert

Qualified vocational expert Thomas Nimberger also testified at the

December 2023 hearing. Tr. 892–95. The ALJ found that Swedren had no past

relevant work and then provided Mr. Nimberger with the description of a

hypothetical individual. Tr. 892–93. The hypothetical individual had limited

education, no past relevant work, and was limited to performing light work

with additional functional limitations. Tr. 893. Mr. Nimberger testified that

there were a significant number of jobs in the national economy that the first

hypothetical individual could perform, including: office cleaner, marker, or

mail clerk. Tr. 894.

Swedren’s representative modified the hypothetical, such that the

individual would miss one day of work per week or would be off task 20% of the

workday. Tr. 894–95. Mr. Nimberger stated that both modifications would be

work preclusive. Tr. 894–95.

6. Consultative Examiners

In February 2019, on referral by the Ohio disability determination

services, Dr. Bryan Krabbe completed an initial psychological consultative

examination. Tr. 613–19. He diagnosed Swedren with: unspecified bipolar and

related disorder, unspecified alcohol related disorder in sustained remission,

and unspecified stimulant related disorder in sustained remission. Tr. 618. Dr.

Krabbe responded to several questions in a section titled “Functional

Assessment.” Tr. 618–19. Dr. Krabbe’s responses provided summaries of

Swedren’s psychological symptoms and behavior along with some conclusions

about how Swedren’s mental health might affect her in the workplace. Tr. 618–

19.

In April 2023, Dr. Krabbe conducted a second psychological consultative

examination. Tr. 1357–1363. He diagnosed Swedren with major depressive

disorder, PTSD, and unspecified alcohol related disorder in sustained

remission. Tr. 1362. Again, Dr. Krabbe responded to several questions in a

section called “Functional Assessment.” Tr. 1362–63. Dr. Krabbe summarized

Swedren’s descriptions of her symptoms and how they affected her in various

functional areas. Tr. 1362–1363.

Also in April 2023, Swedren underwent a physical consultative

examination. Tr. 1393–1396. The consultative examiner found that Swedren’s

functional limitations resulted from mental health issues and chronic pain and

assessed various physical functional limitations. Tr. 1396.

ALJ’s Decision

The ALJ made the following findings of facts and conclusions of law:

1. The claimant has not engaged in substantial

gainful activity since October 3, 2018, the

application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe

impairments: Degenerative Disc Disease of

the Lumbar Spine; Hypothyroidism;

Fibromyalgia; Unspecific Myalgia and

Myositis; and Bipolar Disorder (20 CFR

416.920(c)).

3. The claimant does not have an impairment or

combination of impairments that meets or

medically equals the severity of one of the

listed impairments in 20 CFR Part 404,

Subpart P, Appendix 1 (20 CFR 416.920(d),

416.925 and 416.926).

4. After careful consideration of the entire

record, the undersigned finds that the

claimant has the residual functional capacity

to perform light work as defined in 20 CFR

416.967(b) except: The claimant can never

climb ladders, ropes, or scaffolds and can

occasionally climb ramps and stairs. She can

frequently stoop, kneel, and crouch. She can

frequently handle and finger bilaterally. She

can frequently work in pulmonary irritants

and poor ventilation. She should avoid work

around moving machinery, commercial

driving, or unprotected heights. The claimant

can perform unskilled (SVP 1-2) work, free of

fast-paced production requirement and only

routine workplace changes that are explained

or demonstrated in advance. She can have

occasional public contact, but no interaction.

She can have occasional, superficial

interaction with co-workers, superficial

contact meaning no arbitration, negotiation,

confrontation, direction of the work of others,

persuasion of others or responsibility for the

safety or welfare of others.

5. The claimant has no past relevant work (20

CFR 416.965).

6. The claimant was born on December 19, 1970

and was 47 years old, which is defined as a

younger individual age 18-49, on the date the

application was filed. The claimant

subsequently changed age category to closely

approaching advanced age (20 CFR 416.963).

7. The claimant has a limited education (20 CFR

416.964).

8. Transferability of job skills is not an issue

because the claimant does not have past

relevant work (20 CFR 416.968).

9. Considering the claimant’s age, education,

work experience, and residual functional

capacity, there are jobs that exist in

significant numbers in the national economy

that the claimant can perform (20 CFR

416.969 and 416.969a).

10. The claimant has not been under a disability,

as defined in the Social Security Act, since

October 3, 2018, the date the application was

filed (20 CFR 416.920(g)).

Tr. 847, 848, 850–51, 857–58.

Standard for Disability

Eligibility for social security benefit payments depends on the existence

of a disability. 42 U.S.C. §§ 423(a), 1382(a). “Disability” is defined as the

“inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C.

§ 1382c(a)(3)(A).

An ALJ is required to follow a five-step sequential analysis to make a

disability determination:

1. Is the claimant engaged in substantial gainful

activity? If so, the claimant is not disabled.

2. Does the claimant have a medically

determinable impairment, or a combination of

impairments, that is “severe”? If not, the

claimant is not disabled.

3. Does the claimant’s impairment meet or equal

one of the listed impairments and meet the

duration requirement? If so, the claimant is

disabled. If not, the ALJ proceeds to the next

step.

4. What is the claimant’s residual functional

capacity and can the claimant perform past

relevant work? If so, the claimant is not

disabled. If not, the ALJ proceeds to the next

step.

5. Can the claimant do any other work

considering the claimant’s residual functional

capacity, age, education, and work

experience? If so, the claimant is not disabled.

If not, the claimant is disabled.

20 C.F.R. §§ 404.1520, 416.920; see Jordan v. Comm’r of Soc. Sec., 548 F.3d

417, 422 (6th Cir. 2008). Under this sequential analysis, the claimant has the

burden of proof at steps one through four. Jordan, 548 F.3d at 423. The burden

shifts to the Commissioner at step five “to prove the availability of jobs in the

national economy that the claimant is capable of performing.” Id. “The

claimant, however, retains the burden of proving her lack of residual functional

capacity.” Id. If a claimant satisfies each element of the analysis and meets the

duration requirements, the claimant is determined to be disabled. Walters

Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).

Standard of review

A reviewing court must affirm the Commissioner’s conclusions unless it

determines “that the ALJ has failed to apply the correct legal standards or has

made findings of fact unsupported by substantial evidence in the record.”

Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence’ is a ‘term of art’” under which

“a court … asks whether” the “existing administrative record … contains

‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek

v. Berryhill, 587 U.S. 97, 102 (2019) (citations omitted). The substantial

evidence standard “is not high.” Id. at 103. Substantial evidence “is ‘more than

a mere scintilla’” but it “means only[] ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Id. (citations

omitted). The Commissioner’s “findings … as to any fact if supported by

substantial evidence [are] conclusive.” 42 U.S.C. § 405(g); Biestek, 587 U.S. at

99.

A court may “not try the case de novo, resolve conflicts in evidence, or

decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.

2007). Even if substantial evidence or a preponderance of the evidence

supports a claimant’s position, a reviewing court cannot overturn the

Commissioner’s decision “so long as substantial evidence also supports the

conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,

477 (6th Cir. 2003). This is so because there is a “zone of choice within which”

the Commissioner can act, without fear of judicial “interference.” Lindsley v.

Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (quoting Felisky v.

Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)).

Discussion

Before proceeding to Swedren’s two enumerated issues, the Court notes

that Swedren raises an overarching argument that the ALJ failed to address

everything the Appeals Counsel directed the ALJ in its remand order to

address. See Doc. 7, at 11, 19, 24. Neither party discusses whether this Court

has jurisdiction to address the ALJ’s alleged failure to adhere to an Appeals

Council’s remand order. But most courts in this Circuit have found that federal

courts lack jurisdiction to consider this issue. See Sisson v. Colvin, No. 5:15-

CV-552, 2016 WL 8671906, at *12 (N.D. Ohio June 14, 2016) (internal citations

omitted). It is also unclear—since neither party discusses the issue—whether

it makes any difference that the Appeals Council issued the remand order in

relation to a different case and as to a different ALJ decision or that Swedren

did not appeal ALJ Panek’s decision, which is the subject of this appeal, to the

Appeals Council. See Doc. 1. Regardless, for the reasons stated below, I

recommend remand of ALJ Panek’s decision.

1. The ALJ applied the wrong standard when considering the

evidence applicable to Swedren’s successive disability claim.

Swedren first asserts that the ALJ erred by adopting an RFC that was

identical to the previous RFC because the ALJ did not properly weigh new

evidence as required by Earley v. Comm’r of Soc. Sec., 893 F.3d 929 (6th Cir.

2018). See Doc. 7, at 11. Review of the ALJ’s decision reveals that the ALJ erred

when considering the earlier adjudications of Swedren’s previous disability

applications. Tr. 845. Additionally demonstrating the ALJ’s failure to apply

the more recent Earley standard, the ALJ found certain medical evidence

persuasive based on an improper evaluation of that evidence. Tr. 855.

In Drummond v. Comm’r of Soc. Sec., the Sixth Circuit held that

previous decisions “clearly demonstrate that the principles of res judicata can

be applied against the Commissioner. When the Commissioner has made a

final decision concerning a claimant’s entitlement to benefits, the

Commissioner is bound by this determination absent changed circumstances.”

126 F.3d 837, 842 (6th Cir. 1997).

The Social Security Administration adopted this decision as

Acquiescence Ruling 98-4(6), 63 Fed. Reg. 29,771 (June 1, 1998). In this Ruling

the Administration instructed that:

When 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.

Id. at 29, 773 (emphasis added).

As it turned out, the Social Security Administration overread

Drummond. And in Earley, the Sixth Circuit corrected that error. The Court

in Earley explained that “[w]hen an individual seeks disability benefits for a

distinct period of time, each application is entitled to review. There is nothing

in the relevant statutes to the contrary. And res judicata only ‘foreclose[s]

successive litigation of the very same claim.’” 893 F.3d at 933 (“a claim that

one became disabled in 1990 is not the same as a claim that one became

disabled in 1994.”). Rather, under Earley, a claimant is entitled to a “fresh

review,” id. at 934, free from the presumption that a previous “RFC remains

the correct RFC for” a later claim, Nadjl v. Comm’r of Soc. Sec., No. 21-cv-

01578, 2022 WL 2820413, at *9 (N.D. Ohio July 8, 2022), report and

recommendation adopted, 2022 WL 2818444 (N.D. Ohio July 18, 2022); see also

Anthony L.M. v. Comm’r of Soc. Sec., No. 3:20-cv-00525, 2022 WL 10638159,

at *3–4 (S.D. Ohio June 27, 2022); DiLauro v. Comm’r of Soc. Sec., No. 19-cv-

2691, 2021 WL 1175415, at *3 (N.D. Ohio Mar. 29, 2021); Ferrell v. Berryhill,

No. 16-cv-0050, 2019 WL 2077501, at *5 (E.D. Tenn. May 10, 2019) (“The point

of Earley, … is that regardless of her chances of success, 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”)

(emphasis added).

The Sixth Circuit also said in Earley that “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.” 893 F.3d at 933 (emphasis

added). An ALJ may “consider a previous ALJ’s RFC” determination but “errs

… when he considers the previous RFC a mandatory starting point for the

analysis.” Gale v. Comm’r of Soc. Sec., No. 18-cv-00859, 2019 WL 8016516, at

*5 (W.D. Mich. Apr. 17, 2019), report and recommendation adopted, 2020 WL

871201 (W.D. Mich. Feb. 21, 2020).

Here, the ALJ did what Earley and its progeny prohibit—use the

previous RFC determination as a presumptively correct starting point. See

Anthony L. M., 2022 WL 10638159, at *4 (faulting an ALJ for “adher[ing] to” a

previous “decision as a mandatory starting point”). While the ALJ in Swedren’s

case did not err by finding that res judicata applied to the disability period

applicable to Swedren’s 2017 disability determination, Tr. 845, and he

accurately explained that there is “new and material evidence in the case at

hand[,]” Tr. 845, he did not give Swedren’s application a “fresh look.” See

Earley, 893 F.3d at 931. Instead, the ALJ used the previous RFC determination

as a mandatory starting point and required Swedren to present “compelling,

new information” before “depart[ing] from the … prior ALJ findings.” Tr. 855.

And, when evaluating Dr. Krabbe’s medical opinions, the ALJ expressed that

the evidence and symptoms described did not “warrant a deviation from the

prior ALJ decision mental residual functional capacity evaluation in June

2017.” Tr. 856. These statements show that the ALJ did not view Swedren’s

claim through the requisite lens.

Swedren relies on DiLauro, 2021 WL 1175415, at *3–4, to support her

argument that the ALJ’s error “casts a pall over the entire hearing as Plaintiff

faced an unwarranted presumption that the findings of the prior hearing were

correct.” Doc. 7, at 18. The ALJ in that case “cite[d] Drummond for the very

principle that Earley rejected–that ‘[a]bsent evidence of an improvement in a

claimant’s condition, a subsequent ALJ is bound by the findings of a previous

ALJ.’” Id. at *3. That Court noted that the ALJ repeatedly gave “great weight”

to state medical consultants opinions that relied on Drummond, and which

were offered before Earley was issued. Id. at *4.

Here, the ALJ not only cited Drummond, rather than Earley,7 but also,

as in DiLauro, gave great weight to medical evidence that itself relied on

Drummond to adopt earlier RFC determinations. See id.; Tr. 845, 855. Indeed,

both Dr. Multcher and Dr. Hughes stated that under Acquiescence Ruling 98-

4 and Drummond, they adopted the previous ALJ’s RFC determination. Tr. 98,

115. “This alone warrants reversal.” Anthony L.M., 2022 WL 10638159, at *3

(remarking that an ALJ “adopted the recommendations of” two “doctors who

adopted [a previous ALJ’s] decision without recognizing that Plaintiff’s

application covered a new period”).

So although the ALJ summarized medical evidence from 2018 through

2023, Tr. 852–854, he did not properly evaluate that new evidence in light of

Earley. In particular, the ALJ’s stated explanation of the weight that he gave

the state agency reviewer’s findings is inconsistent with Earley. See 893 F.3d

at 933.

In this regard, the ALJ found both state agency reviewers’ opinions,

which adopted the June 2017 decision, persuasive. See Tr. 98, 115. A state

agency reviewer’s opinion is often based on an incomplete record. See, e.g.,

Jones v. Colvin, No. 13-cv-1781, 2014 WL 4594812, at *3 (N.D. Ohio Sept. 12,

7 The ALJ’s failure to cite Earley does not, on its own, constitute a failure

to apply proper legal standards. See Civitarese v. Comm’r of Soc. Sec., No. 1:19-

cv-2015, 2020 WL 4366077, at *13 (N.D. Ohio July 30, 2020) (“[T]his court

reviews whether the ALJ applied proper legal standards, not whether the ALJ

provided proper legal citations.”). But it does give the Court pause. After all,

the Sixth Circuit issued Earley in 2018 and the ALJ in this case issued his

decision nearly six years later in February 2024.

2014) (“[b]ecause state agency review precedes ALJ review, there is always

some time lapse between the consultant’s report and the ALJ hearing and

decision. The Social Security regulations impose no limit on how much time

may pass between a report and the ALJ’s decision in reliance on it.”) (quoting

Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3rd Cir. 2011)). So long as

an ALJ considers the later evidence and takes “into account any relevant

changes in [the claimant’s] condition,” the ALJ will not err in relying on the

state agency reviewers’ opinions. McGrew v. Comm’r of Soc. Sec., 343 F. App’x

26, 32 (6th Cir. 2009). Here, however, the ALJ did not elaborate on whether or

how much the reviewers’ opinions remained persuasive in light of the new

evidence. See Tr. 855. Instead, the ALJ applied a standard that is not

supported by Earley to find the state agency reviewers’ opinions, which self-

evidently did not apply Earley, persuasive. Id. (reasoning that “there is no

compelling, new information that would require a departure from the

claimant’s prior ALJ findings”).

The ALJ’s errors here are nearly identical to the two primary errors

found in Anthony L. M. v. Comm’r of Soc. Sec. See 2022 WL 10638159 at 3–4.

First, the ALJ’s adoption of state agency reviewer’s opinions that themselves

adopted a prior decision based on Drummond could “alone warrant[] reversal.”

Anthony L. M., 2022 WL 10638159, at *3 (finding that the ALJ violated the

principles set out in Earley by adopting the recommendations of two reviewers

who applied Drummond to adopt prior RFC findings without recognizing that

Plaintiff’s application was for a new period). Second, the ALJ’s description of

how he evaluated the opinion evidence, specifically from the state agency

reviewers, shows that he viewed the prior ALJ’s findings as a necessary

starting point. See Tr. 855 (“[T]here is no compelling, new information that

would require a departure from the claimant’s prior ALJ findings.”). This was

an error because it shows that the ALJ “did not perform a de novo review of

the medical record with respect to [Swedren’s] new claim.” See Anthony L.M.,

2022 WL 10638159, at *4 (citation omitted).

As a final matter, the ALJ repeatedly stated that he evaluated all the

evidence in making his decision. See, e.g., 846, 847, 850, 851. The ALJ’s

decision, however, belies this statement. As explained above, the ALJ’s

description of how he evaluated certain evidence shows that he failed to take

a “fresh look” at Swedren’s current application, which covered a distinct period

from her earlier applications. See Earley, 893 F.3d at 931, 933. So remand is

necessary.

2. The ALJ failed to properly articulate his evaluation of certain

medical opinion evidence.

Swedren’s second argument points to medical opinion evidence that the

ALJ discussed and, generally, argues that the ALJ’s evaluation failed to meet

the standards set out in applicable regulations. See Doc. 7, at 20.

First, Swedren argues that when “the ALJ found that the restrictions

imposed by Dr. Erin Embly were not persuasive as chiropractors are not

acceptable medical sources,” he failed to “sufficiently address” supportability

and consistency. Doc. 7, at 21 (citing Tr. 856). This statement ignores the fact

that the ALJ also articulated that Dr. Emley’s findings were rejected as

unpersuasive because they “were not supportive of or consistent with the

totality of [Swedren’s] medial evidence of record, including physical

examination findings.” Tr. 856. While the ALJ’s statement as to the

supportability and consistency of Dr. Emley’s findings is limited, Swedren has

not explained how the ALJ failed to “sufficiently address” these factors. So

she’s forfeited the argument. See Williamson v. Recovery Ltd. P’ship, 731 F.3d

608, 621 (6th Cir. 2013) (“Issues adverted to in a perfunctory manner, without

some effort to develop an argument, are deemed forfeited.”). To the extent that

Swedren’s second issue challenges the ALJ’s evaluation of Dr. Emley’s

findings, it fails.8

Second, Swedren argues that the ALJ improperly excluded and failed to

explain the exclusion of certain mental limitations set out in Dr. Krabbe’s

persuasive medical opinion. Doc. 7, at 22–23. Swedren’s argument is muddied,

however, by the fact that she does not describe which of the mental limitations

opined by Dr. Krabbe that the ALJ failed to include. Doc. 7, at 23. Instead, she

8 In apparent relation to this argument, Swedren asserts that the ALJ

erred in his evaluation of Dr. Emley’s opinion and challenges the ALJ’s decision

to instead rely on the state agency reviewer’s opinions. Doc. 7, at 21 (stating

that “rather” than support his analysis of Dr. Emley’s opinions with

substantial evidence, the ALJ “relied on the opinions of state agency reviewers

who last reviewed this matter in November 2019 and incorrectly found [the

reviewer’s] opinions persuasive.”). The merits of Swedren’s argument that the

ALJ erred in finding persuasive and relying on the state agency reviewer’s

opinions is addressed above. Supra discussion at p. 24–26.

summarizes the ALJ’s description of Dr. Krabbe’s finding that she had

“difficulty dealing with normal pressures in a workday setting leading to

agitation, withdrawal, and emotional instability along with difficulty getting

along with people and maintaining interpersonal relationships.” Doc. 7, at 23

(citing Tr. 856). And she asserts that when the ALJ failed to explain why he

excluded these limitations from her ultimate RFC, he violated Kinney v.

Comm’r of Soc. Sec., No. 23-3889, 2024 WL 2273365, at *3–4 (6th Cir. May 20,

2024). Id.

In Kinney the Sixth Circuit affirmed that an ALJ need not incorporate

every limitation set out in a medical opinion, even where that medical source’s

opinion is considered persuasive. 2024 WL 2273365, at *3 (citing Reeves v.

Comm’r of Soc. Sec., 618 F. App’x 267, 275 (6th Cir. 2015)). But the Court

clarified that if an ALJ finds that a medical opinion is persuasive but decides

not to include all limitations set out in that medical opinion, then the ALJ must

explain why he did not include all of the limitations. 2024 WL 2273365, at *3

(citing Social Security Ruling 96-8p, 61 Fed. Reg. 34,474 (July 2, 1996)).

Under Kinney, therefore, the ALJ was required to explain why he did

not include certain limitations from Dr. Krabbe’s persuasive medical opinion

into Swedren’s RFC determination.

Swedren’s circumstance is complicated, however, by the fact that Dr.

Krabbe’s medical opinions do not set out the explicit mental limitations he

presumably assessed. See Tr. 1357–63. Instead, his opinions provide

summaries of Swedren’s described symptoms in relation to various questions

which appear to relate to certain areas of mental functional limitations. See

Tr. 1362–63. Dr. Krabbe’s responses in the “Functional Assessment” portion of

his reports loosely reflect what his conclusions presumably were, but they do

not present any clear functional limitations that directly correspond to the

ALJ’s RFC assessment. See Tr. 1362–63 (answering questions asking for an

“assessment” of Swedren’s functional limitations in various categories and

detailing how she performed or what issues she “reported” or “described” in a

given category). For this reason, the Commissioner understandably asserts

that Dr. Krabbe’s findings do not represent a “medical opinion” under

applicable regulations. Doc. 9, at 15. But the ALJ concluded that Dr. Krabbe’s

findings were both medical opinions and both persuasive. Tr. 856. And it is not

the Court’s role to reassess the medical evidence. Bass, 499 F.3d at 509. The

Court thus must assume for purposes of this argument that Dr. Krabbe’s

findings represent a medical opinion that, because the ALJ found it persuasive,

must be properly assessed as the Sixth Circuit described in Kinney.

The ALJ’s decision, however, does not explicitly state what limitations

stemmed from Dr. Krabbe’s medical opinion. And review of Dr. Krabbe’s

reports provide no certainty as to which of the limitations that the ALJ adopted

originated from Dr. Krabbe’s medical opinion. For the most part, the ALJ, like

Dr. Krabbe, simply stated how Swedren “performed” and what Swedren

“reported” or “described.” See Tr. 856. The ALJ then concluded that “[m]ental

health symptoms would cause her difficulties dealing with normal pressures

in a workday setting leading to agitation, withdrawal, and emotional

instability.” Id. (citing generally to both of Dr. Krabbe’s reports). The ALJ did

not explain which of the mental functional limitations assessed by Dr. Krabbe,

assuming there were any, support his conclusion that Swedren would have

certain “difficulties.” The ALJ also failed to connect that conclusion to any

particular mental limitation in Swedren’s RFC assessment. Id. The only

limitations contained in Swedren’s RFC that seem to relate to her mental

functioning are:

The claimant can perform unskilled (SVP 1-2) work,

free of fast-paced production requirement and only

routine workplace changes that are explained or

demonstrated in advance. She can have occasional

public contact, but no interaction. She can have

occasional, superficial interaction with co-workers,

superficial contact meaning no arbitration,

negotiation, confrontation, direction of the work of

others, persuasion of others or responsibility for the

safety or welfare of others.

Tr. 851.

While perhaps the above limitations are designed to address the ALJ’s

interpretation of the record and relate to his conclusion that Swedren would

have “difficulties dealing with normal pressures in a workday setting[,]” the

ALJ did not explain that. The ALJ also did not explain whether or how Dr.

Krabbe’s findings correspond to the limitations the ALJ ultimately included in

Swedren’s RFC. Without this explanation, there is an incongruity between the

two, two-page functional assessment responses provided by Dr. Krabbe and the

one paragraph analysis provided by the ALJ. And Kinney instructs that this

disparity should have been explained. See 2024 WL 2273365, at *3. But it was

not.

Review of Dr. Krabbe’s opinion to determine whether all of the opined

limitations were included, since which Swedren argues they were not, offers

little clarity. So the Court can’t tell whether the ALJ’s incorporated mental

limitations correspond with Dr. Krabbe’s opinion or are otherwise supported

by substantial evidence. Because the Court cannot assess whether the ALJ did

or did not include all of Dr. Krabbe’s opined limitations, assuming there were

any, the Court should remand on this issue as well.

Conclusion

For the reasons explained above, I recommend that the Commissioner’s

decision be vacated and remanded for proceedings consistent with this opinion.

Dated: December 3, 2024

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–531 (6th

Cir. 2019).