Bly v. O'Malley

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

TERESA LYNN BLY )

) Case No. 3:24-cv-00957

v. )

)

LELAND DUDEK, Acting Commissioner of )

Social Security Administration1 )

MEMORANDUM OPINION

Plaintiff Teresa Lynn Bly filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial

review of the final decision of the Social Security Administration (“SSA”) denying her disability

insurance benefits (“DIB”) under Title II and supplemental security income (“SSI”) under Title

XVI of the Social Security Act (the “Act”). The case is currently pending on Plaintiff’s motion for

judgment on the administrative record (Docket No. 15) and supporting memorandum (Docket No.

16), to which Defendant SSA has responded (Docket No. 18) and Plaintiff has replied (Docket No.

21). This action is before the undersigned for all further proceedings pursuant to the consent of the

parties in accordance with 28 U.S.C. § 636(c). (Docket No. 9.)

Upon review of the administrative record as a whole and consideration of the parties’

filings, Plaintiff’s motion (Docket No. 15) is GRANTED. For the reasons stated herein, the Court

REVERSES the decision of the SSA and REMANDS the matter for further administrative

proceedings.

1 Leland Dudek became the Acting Commissioner of Social Security on February 17, 2025.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Leland Dudek is substituted for

Martin O’Malley (who served as Acting Commissioner from December 20, 2023 to November 29,

2024) as the defendant.

I. INTRODUCTION

On February 10, 2020, Plaintiff proactively filed an application for DIB and SSI.

(Transcript of the Administrative Record (Docket No. 11) at 262–77.)2 In those applications,

Plaintiff asserted that, as of the alleged onset date of May 15, 2019, she was disabled and unable

to work due to bipolar I disorder; manic depression; generalized anxiety disorder; major depressive

disorder; hypertension; chronic obstructive pulmonary disease (COPD); emphysema; sciatic nerve

damage, hips, legs; torn rotator cuff in shoulders; broken bones in left arm; lower back problem;

and neck problem. (AR 309, 330.)

The claims were denied initially on December 16, 2020 (AR 84–105) and upon

reconsideration on November 17, 2022 (AR 106–22). On June 21, 2023, Plaintiff appeared with

an attorney and testified at a telephone hearing conducted by administrate law judge (“ALJ”)

Shannon Heath. (AR 34–83.) On August 22, 2023, the ALJ denied Plaintiff’s claims. (AR 14–33.)

Plaintiff requested a review of the ALJ’s decision, but the Appeals Council denied this request on

July 1, 2024 (AR 1–6), thereby making the ALJ’s decision the final decision of the Commissioner.

Plaintiff then timely commenced this civil action, over which the Court has jurisdiction pursuant

to 42 U.S.C. § 405(g).

II. THE ALJ’S FINDINGS

The ALJ included the following enumerated findings in her August 22, 2023 unfavorable

decision:

1. The claimant meets the insured status requirements of the Social Security Act

through June 30, 2022

2 The Transcript of the Administrative Record is hereinafter referenced by the abbreviation

“AR” followed by the corresponding Bates-stamped number(s) in large black print in the bottom

right corner of each page.

2. The claimant has not engaged in substantial gainful activity since May 15, 2019,

her alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.).

3. The claimant has the following severe impairments: anxiety and depression

disorders (20 CFR 404.1520(c) and 416.920(c)).

4. 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 12.00 of

20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,

404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform a full range of work at all

exertional levels, but with the following non-exertional limitations: She can

understand, remember, carry out and maintain concentration, persistence or pace

for simple and low-level detailed tasks. She can interact appropriately with others.

She can only adapt to routine changes in the workplace.

6. The claimant is capable of performing her past relevant work as a packer, stores

laborer and laundry attendant. This work does not require the performance of work-

related activities precluded by the claimant’s residual functional capacity (20 CFR

404.1565 and 416.965).

7. The claimant has not been under a disability, as defined in the Social Security Act,

from May 15, 2019, through the date of this decision (20 CFR 404.1520(f) and

416.920(f)).

(AR 20–27.)

III. REVIEW OF THE RECORD

The parties and the ALJ, in combination, have thoroughly summarized and discussed the

medical and testimonial evidence of the administrative record. Accordingly, the Court will discuss

those matters only to the extent necessary to analyze the parties’ arguments.

IV. DISCUSSIONS AND CONCLUSIONS OF LAW

A. Standard of Review

The determination of disability under the Act is an administrative decision. The only

questions before this Court upon judicial review are: (1) whether the SSA’s decision is supported

by substantial evidence, and (2) whether the proper legal criteria were applied to the SSA’s

decision. Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)). The SSA’s decision must be affirmed if

it is supported by substantial evidence, “even if there is substantial evidence in the record that

would have supported an opposite conclusion.” Blakley, 581 F.3d at 406 (quoting Key v. Callahan,

109 F.3d 270, 273 (6th Cir. 1997)). Substantial evidence is defined as “more than a mere scintilla”

and “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.

2007); LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions

adopting language substantially like that in Richardson).

The SSA utilizes a five-step sequential evaluation process to determine whether a claimant

is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). If the issue of disability can be resolved at any

point during the evaluation, the ALJ does not proceed to the next step and the claim is not reviewed

further. Id. First, if the claimant is engaged in substantial gainful activity, she is not disabled. Id.

Second, if the claimant does not have a severe medically determinable impairment that meets the

12-month durational requirement, she is not disabled. Id. Third, if the claimant suffers from a listed

impairment, or its equivalent, for the proper duration, she is presumed disabled. Id. Fourth, if the

claimant can perform relevant past work based on her RFC, which is an assessment of “the most

you [the claimant] can still do despite your limitations,” 20 C.F.R. § 404.1545(a)(1), she is not

disabled. Id. Fifth, if the claimant can adjust to other work based on her RFC, age, education, and

work experience, she is not disabled. Id. The claimant bears the burden of proof through the first

four steps, while the burden shifts to the SSA at step five. Johnson v. Comm’r of Soc. Sec., 652

F.3d 646, 651 (6th Cir. 2011) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir.

2004)).

The Court’s review of the SSA’s decision is limited to the record made in the administrative

hearing process. Jones v. Sec’y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991).

A reviewing court may not try a case de novo, resolve conflicts in evidence, or decide questions

of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v. Richardson,

471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit findings and

determination unless the record is without substantial evidence to support the ALJ’s determination.

Houston v. Sec’y of Health & Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).

B. The ALJ’s Five-Step Evaluation of Plaintiff

In the instant case, the ALJ resolved Plaintiff’s claim at step three of the five-step process.

The ALJ found that Plaintiff met the first two steps: (1) she had not engaged in substantial gainful

activity since the alleged onset date, and (2) her impairments of anxiety and depressive disorders

were severe.3 (AR 1158.) However, the ALJ determined at step three that Plaintiff was not

presumptively disabled because she did not have an impairment or combination of impairments

that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1. (AR 20–22.) At step four, the ALJ determined that Plaintiff had the RFC

to perform a full range of work at all exertional levels, but with certain non-exertional limitations.

(AR 22–27.) At step five, the ALJ determined that Plaintiff could perform past relevant work. (AR

27.) Therefore, the ALJ concluded that Plaintiff was not under a disability at any time from May

15, 2019, the alleged onset date, through August 22, 2023, the decision date. (AR 27.)

3 The ALJ found that Plaintiff’s mild decreased vision acuity, hypertension,

emphysema/COPD, fibromyalgia, left upper extremity fracture, distal radius fracture, and alcohol

use disorder were non-severe impairments. (AR 20.)

C. Plaintiff’s Assertion of Error

Plaintiff requests that this case be remanded back to the SSA for further consideration

based on four assertions of error: (1) the ALJ wrongly found that Plaintiff’s COPD was not severe;

(2) the ALJ did not adequately evaluate Plaintiff’s depression and anxiety symptoms; (3) the ALJ

did not adequately assess the medical opinion of consultative examiner Mistie Germek, Ph.D.; and

(4) the RFC fails to account for Plaintiff’s moderate limitations in concentration, persistence, and

pace. (Docket No. 16 at 10–23.)4

Accordingly, Plaintiff asks the Court to vacate the ALJ’s decision or remand the matter

under sentence four of 42 U.S.C. § 405(g), which allows a district court to enter “a judgment

affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or

without remanding the cause for a rehearing.”

1. The ALJ’s Consideration of Plaintiff’s COPD

In her first assertion of error, Plaintiff alleges that the ALJ erred in her assessment of

Plaintiff’s COPD at step two of the sequential evaluation analysis. (Docket No. 16 at 10–14.)

Specifically, she asserts that the ALJ’s finding that her COPD was not “severe” was based on (1)

the incorrect assumption that Plaintiff had access to medications for COPD, even though she did

not, and (2) the unsupported assumption that these medications would have effectively controlled

Plaintiff’s COPD symptoms. Plaintiff argues that this error was not harmless because the ALJ did

not go on to evaluate Plaintiff’s COPD or any other physical limitations when considering

Plaintiff’s RFC.

4 For the sake of consistency, the Court’s citations are to the page number assigned by the

Court that are included in blue font at the bottom of the page (i.e., Page __ of __ ) and not to the

page number assigned by the party.

Step two of the sequential evaluation analysis requires the claimant to establish the

existence of a severe medically determinable impairment that meets the twelve-month durational

requirement. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). A “medically

determinable impairment” is an impairment that “result[s] from anatomical, physiological, or

psychological abnormalities that can be shown by medically acceptable clinical and laboratory

diagnostic techniques.” 20 C.F.R. § 404.1521. A severe impairment is one that “significantly limits

your physical or mental ability to do basic work activities,” and “significantly” is to be liberally

construed in the claimant’s favor. 20 C.F.R. § 404.1520(c). See Griffeth v. Comm’r of Soc. Sec.,

217 F. App’x 425, 428 (6th Cir. 2007). The purpose of this second step is to enable the SSA to

screen out “totally groundless claims.” Farris v. Sec’y of Health & Human Svcs., 773 F.2d 85, 89

(6th Cir. 1985). Accordingly, the Sixth Circuit has construed the step two severity regulation as a

“de minimis hurdle” in the disability determination process. Higgs v. Bowen, 880 F.2d 860, 862

(6th Cir. 1988).

An ALJ’s failure to find an impairment to be “severe” at step two is not reversible error if

the ALJ found another impairment to be “severe” and therefore continued with the next step in the

five-step evaluation. See, e.g., Fisk v. Astrue, 253 F. App’x 580, 584 (6th Cir. 2007); Anthony v.

Astrue, 266 F. App’x 451, 457 (6th Cir. 2008). Further, if the ALJ continues with the remaining

steps, any error at step two is harmless, so long as the ALJ considered the effects of all medically

determinable impairments, including those deemed non-severe. Hatton v. Comm’r of Soc. Sec.,

No. , 2018 WL 1278916, at *6 (E.D. Mich. Feb. 14, 2018) (citing Cobb v. Colvin, No. 12–1156,

2013 WL 1767938 at *4 (D. Kan. Apr. 24, 2013) (“The Commissioner is correct that the failure to

find that additional impairments are severe is not in itself cause for reversal. But this is true only

so long as the ALJ considers the effects of all of the claimant's medically determinable

impairments, both those he deems severe and those not severe.”); Jackson v. Astrue, 734 F. Supp.

2d 1343, 1361 (N.D. Ga. 2010)).

In her decision, the ALJ found two impairments to be severe: anxiety and depression

disorders. The ALJ did not, however, find Plaintiff’s COPD to be severe.5 (AR 20.) The ALJ

stated:

While the claimant has also been diagnosed with . . . emphysema/chronic

obstructive pulmonary disease . . . , the evidence establishes those conditions are

. . . controlled by the medications and inhalers she takes and uses for the same

without adverse medicinal side effects and that they have not imposed more than

minimal limitations on her ability to perform basic work activities since her alleged

onset date. Therefore, the undersigned finds they are non-severe impairments

within the meaning of the Social Security Act . . . .

(AR 20.) In other words, the ALJ found Plaintiff’s COPD to be non-severe because it was

controlled by medication and did not impose “more than minimal limitations” on Plaintiff’s ability

to perform basic work activities.

Plaintiff contends that this finding is in error. (Docket No. 16 at 10–14.) She argues that

that only basis on which the ALJ justified the finding that Plaintiff’s COPD was not severe was

that the COPD was controlled by medication. However, Plaintiff argues that this conclusion was

a “legal error” because the record shows that Plaintiff could not afford medication. She also

contends that there is no evidence to show that her COPD would have been controlled with

medication, had she taken it, or that her COPD was, indeed, controlled by her use of a rescue

inhaler.

She also argues that she met the “de minimis hurdle” to show that her COPD causes more

than a minimal impact on her ability to work. To support this position, she cites to medical record

5 The ALJ also did not find Plaintiff’s mild decreased vision acuity, hypertension,

fibromyalgia, fractures to her left upper extremity humorous and distal radius, or alcohol use

disorder to be severe impairments. (AR 20.)

evidence, her hearing testimony, and a “medical opinion” that limited her to sedentary work. For

the first category, medical record evidence, she points to a May 2019 note that indicated that she

had been followed for COPD for some time prior; diagnosed her with COPD; and prescribed

several medications, including an albuterol nebulizer and inhaler, as well as Breo Ellipta.6 (AR

581.) She then points to a June 2021 note indicating that she was a “self-pay” patient who was

doing well on her “regimen” but lost her insurance and was, therefore, no longer taking

medications. (AR 510.)

For the second category, Plaintiff refers to portions of her hearing testimony regarding her

breathing issues. During the hearing, she stated that her “breathing” was the “biggest” health issue

she faced over the last few years, and that her “lung disability” was occurring when she filed her

application for DIB and SSI. (AR 56.) She also stated that she received samples of medication

from her doctor, but stopped using the medication once the samples ran out. (AR 68.) She also

described difficulties with hot and cold temperatures and with completing chores because of her

breathing issues. (AR 58, 64.) Finally, she stated that she had been without insurance for some

time, but had received coverage recently and had scheduled a primary care appointment. (AR 69.)

For the third and final category, Plaintiff points to examination notes from Dr. Terrence

Leveck. (AR 541–42.) Plaintiff presented to Dr. Leveck for a “systems examination and

pulmonary function testing with bronchodilator” on August 17, 2022, but she did not undertake

the examination and testing because of elevated blood pressure and headache onset. Dr. Leveck

noted that she had a “chronic productive cough,” “bilateral prominent wheezes,” and “chronic”

condition, but that she was not in acute respiratory distress.

6 Plaintiff describes Breo Ellipta as a “a combination inhaled corticosteroid (fluticasone)

and a long-acting beta-2 adrenergic agonist (vilanterol) used for the maintenance treatment of

COPD and to reduce COPD exacerbations.” (Docket No. 16 at 13 n.4.)

In response, the SSA contends that Plaintiff failed to demonstrate that her COPD caused

any “non-speculative functional limitations.” (Docket No. 18 at 4–6.) In other words, the SSA

argues that Plaintiff needed to demonstrate that her COPD diagnosis resulted in limitations that

“significantly limit[ed] [Plaintiff’s] physical or mental ability to do basic work activities,” but that

Plaintiff merely pointed to her COPD diagnosis without providing more evidence that the

diagnosis limited her abilities. (Id. at 6 (quoting Seeley v. Comm’r of Soc. Sec., 600 F. App’x 387,

390 (6th Cir. 2015) (“When doctors’ reports contain no information regarding physical limitations

or the intensity, frequency, and duration of pain associated with a condition, this court has regularly

found substantial evidence to support a finding of no severe impairment.”)).) The SSA also

contends that the record itself does not suggest that Plaintiff’s COPD caused any functional

limitations that would impact her ability to do work.

The Court finds that the ALJ did not err by failing to find Plaintiff’s COPD to be a severe

impairment. Although there is evidence in the record to show that Plaintiff suffered from COPD,

the mere existence of this impairment does not establish that Plaintiff was significantly limited

from performing basic work activities for a continuous period of time because of it. Plaintiff has

not pointed to any medical evidence that includes “information regarding physical limitations or

the intensity, frequency, and duration of pain associated” with her COPD. Despins v. Comm’r of

Soc. Sec., 257 F. App’x 923, 930 (6th Cir. 2007) (quoting Long v. Apfel, 1 F. App’x 326, 331 (6th

Cir. 2001)). In this circumstance, the Sixth Circuit has “regularly found substantial evidence to

support a finding of no severe impairment.” Id. (quoting Long, 1 F. App’x at 331). See also Higgs,

880 F.2d at 863 (“[M]ere diagnosis of arthritis . . . says nothing about the severity of the

condition.”); Asbury v. Comm’r of Soc. Sec., No. 14-CV-13339, 2016 WL 739658, at *3 (E.D.

Mich. Feb. 25, 2016) (“[D]iagnoses themselves generally do not establish disability; rather,

disability is determined by the functional impairments caused by the diagnosis or condition . . . .

And a diagnosis of a condition, without more, does not speak to the severity of the condition or

the functional limitations associated with it.”). Further, an ALJ “must not accept unsupported

medical opinions or a claimant’s subjective complaints” when considering whether a claimant has

a severe impairment. See Rideout v. Saul, No. 3:18-cv-00664, 2019 WL 6206977, at *5 (M.D.

Tenn. Sept. 10, 2019) (quoting Wilkins v. Comm'r of Soc. Sec., No. 13-12425, 2014 WL 2061156,

at *13 (E.D. Mich. May 19, 2014)).

Here, the medical records indicate that Plaintiff was diagnosed with COPD in or around

2018. (AR 581.) However, the administrative record contains no medical evidence that the COPD

caused work-related limitations. Plaintiff argues that pulmonary function testing in 2019

demonstrated that she had a “moderate obstructive lung effect” (AR 584) and that Dr. Leveck’s

unsuccessful attempt at administering pulmonary functioning testing in 2022 indicates “more than

a minimal impact” on Plaintiff’s functioning (AR 541–42). While this may be true, neither of these

records suggest limitations to work-related activities.

The only evidence in the record that links Plaintiff’s COPD with any potential work-related

limitations is Plaintiff’s own testimony, which included that her “breathing” was her biggest health

issue and caused her to experience environmental problems, including with heat, cold, cleaning

products, and other aerosols. (AR 56, 58–59.) She also testified that she had to take breaks from

household chores because of her breathing issues, which include coughing and being unable to

breath, and that she cannot walk long distances because of her breathing. (AR 64–65.) However,

as set forth above, an ALJ should not accept a claimant’s subject complaints, without other

evidence, when considering whether an impairment is severe. See Rideout, 2019 WL 6206977 at

*5.

Nevertheless, even if the ALJ did err by finding Plaintiff’s COPD to be non-severe, such a

finding would not be reversible error. Plaintiff argues otherwise and contends that the ALJ failed

to consider her COPD when formulating her RFC, so the step two failure is not harmless. However,

based on the Sixth Circuit’s guidance, the Court disagrees. In Emard v. Comm’r of Soc. Sec., 953

F.3d 844(6th Cir. 2020), the Sixth Circuit detailed the extent to which an ALJ must consider non-

severe impairments when making an RFC determination:

Although the ALJ did not specifically discuss the combined effect of Emard’s

impairments or mention Emard’s nonsevere impairments in assessing his residual

functional capacity, she stated that she had carefully considered the entire record

and “all symptoms” at this step in the process. This court in Gooch v. Secretary of

Health & Human Services, 833 F.2d 589 (6th Cir. 1987), concluded that an ALJ's

statement that he had conducted “a thorough review of the medical evidence of

record,” along with the fact that the ALJ had considered the claimant's impairments

individually, sufficed to show that the ALJ had considered the impairments in

combination. Id. at 591–92. It explained that “the fact that each element of the

record was discussed individually hardly suggests that the totality of the record was

not considered,” and “[t]o require a more elaborate articulation of the ALJ's thought

processes would not be reasonable.” Id. at 592. As in Gooch, the ALJ's statements

that she had considered the entire record and all of Emard's symptoms suggest that

she had considered Emard's impairments in combination.

Moreover, the ALJ specifically noted in her summary of the applicable law that she

was required to comply with SSR 96-8p's mandate to “consider all of the claimant's

impairments, including impairments that are not severe.” District courts in this

circuit have held that an ALJ need not specifically discuss all nonsevere

impairments in the residual-functional-capacity assessment when the ALJ makes

clear that her decision is controlled by SSR 96-8p. See, e.g., Morrison v. Comm'r

of Soc. Sec., No. 1:14-CV-1059, 2016 WL 386152, at *4 (W.D. Mich. Feb. 2,

2016), aff'd, No. 16-1360, 2017 WL 4278378 (6th Cir. Jan. 30, 2017); Davis v.

Comm'r of Soc. Sec., No. 1:14-CV-0413, 2015 WL 5542986, at *4 (W.D. Mich.

Sept. 18, 2015). These decisions have relied on this court's decision in White v.

Commissioner of Social Security, 572 F.3d 272 (6th Cir. 2009), where an ALJ's

statement that she considered a Social Security Ruling pertaining to credibility

findings sufficed to show that the ALJ complied with that ruling. Id. at 287. The

ALJ's express reference to SSR 96-8p, along with her discussion of the functional

limitations imposed by Emard's nonsevere impairments at step two of her analysis,

fully support our conclusion that the ALJ complied with 20 C.F.R. § 416.945(e)

and SSR 96-8p.

Id. at 851–52 (6th Cir. 2020).

Essentially, the Sixth Circuit directs courts to look for three things when determining

whether an ALJ properly considered all of a plaintiff’s impairments when crafting the RFC: (1) an

“express reference” to Social Security Ruling (“SSR”) 96-8p; (2) a “discussion of the functional

limitations imposed by [the plaintiff's] nonsevere impairments at step two of [the] analysis”; and

(3) a “subsequent assurance that [the ALJ] had considered the entire record and all symptoms.”

John S. v. Comm’r of Soc. Sec., No. 2:22-cv-4207, 2023 WL 6141664, at *4 (S.D. Ohio Sept. 20,

2023) (quoting Thoenen v. Comm'r of Soc. Sec., No. 5:21-CV-1101, 2022 WL 3577414, at *3

(N.D. Ohio Aug. 19, 2022)).

Here, the ALJ included all three statements in her decision. First, as in Emard, the ALJ

explicitly referenced SSR 96-8p as the ALJ stated that she “must consider all of the claimant’s

impairments, including impairments that are not severe (20 CFR 404.1520(e), 404.1545,

416.920(e), and 416.945; SSR 96-8p).” (AR 19.) Second, the ALJ discussed why she believed that

Plaintiff’s COPD did not affect her functional abilities. She stated that Plaintiff’s COPD was

“controlled by the medications and inhalers she takes and uses . . . without adverse medicinal side

effects” and, therefore, her COPD had “not imposed more than minimal limitations on her ability

to perform basic work activities.” (AR 20.) Third, the ALJ stated that she reviewed the “entire

record” and “all symptoms” when formulating Plaintiff’s RFC. (AR 22.) Accordingly, the ALJ

properly considered Plaintiff’s symptoms.

For these reasons, the Court concludes that the ALJ’s consideration of Plaintiff’s COPD is

supported by substantial evidence. The Court therefore rejects Plaintiff’s first assertion of error.

2. The ALJ’s Consideration of Plaintiff’s Symptoms of Depression and Anxiety

In her second assertion of error, Plaintiff argues that the ALJ did not appropriately address

her subject complaints regarding her depression and anxiety symptoms. (Docket No. 16 at 14–19.)

“An individual’s statements as to pain or other symptoms will not alone establish that [she is]

disabled.” Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (internal citation

omitted). Rather, when an individual alleges impairment-related symptoms, the ALJ must evaluate

those symptoms using a two-step process.7 SSR 16-3p, 2017 WL 5180304, at *2. First, the ALJ

considers whether there is an underlying medically determinable impairment that could reasonably

be expected to produce an individual’s symptoms. Id. at *3. Second, if an impairment is

established, the ALJ must then determine the intensity and persistence of the symptoms and the

extent to which the symptoms limit an individual’s ability to perform work-related activities. Id.

In considering the intensity, persistence, and limiting effects of symptoms, the ALJ must

examine the “entire case record,” which includes objective medical evidence, the individual’s own

statements, information from medical sources, and “any other relevant evidence” in the record. Id.

at *4. The ALJ must also consider the following factors: (1) daily activities; (2) the location,

duration, frequency, and intensity of the alleged pain or other symptoms; (3) any precipitating or

aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication; (5) the

claimant’s non-medication treatment; (6) any measures other than treatment the claimant employs

to relieve pain or other symptoms; and (7) “other evidence.” Id. at *7–8.

The consistency of an individual’s statement about the intensity, persistence, and limiting

effects of symptoms is also important. If an individual’s statements are consistent with the

7 A “symptom” is defined as an individual’s own description or statement of her

impairment. SSR 16-3p, 2017 WL 5180304, at *2.

objective medical evidence, it is more likely that those symptoms have reduced the capacity to

perform work-related activities. Id. at *8. On the other hand, if those statements are inconsistent,

it is less likely that those symptoms have reduced the capacity to perform work-related activities.

Id. Consistency is determined by reviewing an individual’s statements when seeking disability

benefits, statements at other times, and attempts to seek and follow medical treatment. Id. at *8–

9. An analysis of treatment history may include a consideration of an individual’s ability to afford

treatment, access to low-cost medical services, and relief from over-the-counter medications,

among other information. Id. at *9.

The ALJ’s determination must contain specific reasons for the weight given to the

individual’s symptoms that are clearly articulated so that the individual and the subsequent

reviewer can assess how the ALJ evaluated the individual’s symptoms. Id. at *10. However, the

Sixth Circuit has held that an ALJ’s credibility determination is “essentially unchallengeable” and

must be affirmed so long as the findings are “reasonable and supported by substantial evidence.”

Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 476 (6th Cir. 2016). See also Calvin v.

Comm’r of Soc. Sec., 437 F. App’x 370, 371 (6th Cir. 2011) (courts must accord “great weight and

deference” to an ALJ’s determination regarding the consistency of a claimant’s allegations);

Daniels v. Comm’r of Soc. Sec., 152 F. App’x 485, 488 (6th Cir. 2005) (claimants seeking to

overturn the ALJ’s decision still “face an uphill battle”). A credibility assessment is firmly within

the ALJ’s discretion and not to be decided anew by a reviewing court. Vaughn v. Berryhill, No.

3:16–cv–02821, 2018 WL 632377, at *6 (M.D. Tenn. Jan. 11, 2018). It is due “great weight and

deference particularly since the ALJ has the opportunity, which we do not, of observing a witness’s

demeanor while testifying.” Id. (quoting Jones v. Comm’r, 336 F.3d 469, 476 (6th Cir. 2003)). A

reviewing court will not disturb an ALJ’s credibility finding “absent compelling reason.” Id.

(quoting Smith v. Comm’r, 307 F.3d 377, 379 (6th Cir. 2001)).

The Court finds that substantial evidence supports the ALJ’s assessment of Plaintiff’s

subjective complaints regarding her anxiety and depression. The ALJ found that Plaintiff’s

“medically determinable impairments could not be reasonably expected to cause her alleged

symptoms” and that Plaintiff’s “statements concerning the intensity, persistence and limiting

effects of these symptoms are not entirely consistent with the medical evidence and other evidence

in the record.” (AR 23.) In coming to this conclusion, the ALJ considered the medical evidence

submitted for the relevant period; a consultative psychological evaluation; Plaintiff’s treatment

history; Plaintiff’s work history; Plaintiff’s testimony from the June 21, 2023 hearing; and the

opinion evidence. (AR 23–26.) In sum, the ALJ observed Plaintiff during her hearing, assessed the

medical records, and reached a reasoned decision regarding whether her statements were consistent

with the evidence in the record.

Plaintiff argues that the ALJ did not properly consider three separate factors. First, she

contends that the ALJ did not consider her limited treatment history, which includes only one

medical appointment after Plaintiff’s alleged onset date of May 15, 2019. (Docket No. 16 at 17.)

Plaintiff believes that the ALJ found her lack of treatment to be inconsistent with her allegations,

though she admits that the ALJ did not explicitly state as much. She then argues that the ALJ’s

finding that her symptoms were controlled by medication is erroneous because she could not afford

medication. The Court finds this argument from Plaintiff to be largely confusing and unpersuasive

to support her contention that the ALJ’s assessment of her subjective complaints was not supported

by objective evidence.

Next, Plaintiff argues that the ALJ’s findings regarding her inability to afford treatment

were “erroneous.” (Id.) The ALJ concluded that there was no indication in the record that Plaintiff

was refused treatment due to an inability to pay or that Plaintiff attempted to obtain treatment from

a local health department or emergency room. (AR 25.) Plaintiff contends that evidence in the

record supports the fact that she was not able to afford treatment, which includes her reliance on

samples, her status as a self-pay patient, and the overall lack of treatment in the record. She asserts

that the record contains no evidence that she could have received reduced or free treatment, and

the suggestion that she go to an emergency room is “not realistic.” Although there may be merit

to some of Plaintiff’s contentions, these do not demonstrate that the ALJ’s conclusion regarding

Plaintiff’s subjective complaints was “erroneous.” The ALJ properly considered Plaintiff’s

treatment, including whether she was able to afford treatment and whether she was insured.

Finally, Plaintiff contends that the ALJ’s factual findings concerning her daily activities

are not supported by substantial evidence. (Id. at 18.) She maintains that some of the ALJ’s

findings regarding her daily activities are contradicted by other findings. For example, Plaintiff

contrasts the ALJ’s finding that Plaintiff can “understand” without any significant problems (AR

25) with the ALJ’s finding that Plaintiff has a “moderate” limitation in understanding,

remembering, or applying information (AR 21). The Court finds no inconsistency here because

the ALJ explained that Plaintiff’s mental impairments prevent her from understanding,

remembering, or applying “high level detailed and complex instructions,” which is what merited

a “moderate” limitation in those functions at an earlier step. (AR 21.)

Plaintiff also argues that the ALJ failed to adequately support her finding that Plaintiff

“follows oral and written instructions fine, needs few reminders, little encouragement and usually

finishes what she starts.” (AR 25.) To support this finding, the ALJ referenced a large swath of

records, but did not offer pincites. The Court agrees with Plaintiff that the ALJ’s lack of specificity

is frustrating. However, this alone is not enough to render the ALJ’s credibility analysis

unsupported by substantial evidence. Finally, Plaintiff references other portion of the record that

could support her position, but these additional references do not render the ALJ’s findings

erroneous. See Valley v. Comm’r of Soc. Sec., 427 F.3d 388, 391 (6th Cir. 2005) (“We may not

reverse a decision supported by substantial evidence, even if we might have arrived at a different

conclusion.”).

In sum, the ALJ relied on specific evidence to support her conclusion that Plaintiff’s

subjective complaints were not entirely consistent with the record, including objective medical

evidence, Plaintiff’s testimony regarding her symptoms and daily activities, and Plaintiff’s

treatment history. Given such support, as well as the significant deference that must be afforded

the ALJ’s credibility determination, the Court finds no reversible error in the ALJ’s finding. See

Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 476 (6th Cir. 2016) (“[W]e affirm if the

ALJ’s determination is reasonable and supported by substantial evidence.”) (internal citation and

quotations omitted). The Court therefore rejects Plaintiff’s second assertion of error.

3. The ALJ’s Consideration of Dr. Germek’s Opinion

In her third assertion of error, Plaintiff argues that her case should be remanded because

the ALJ’s evaluation of the medical opinion of Mistie Germek, Ph.D., is unsupported by

substantial evidence because the ALJ’s supportability and consistency analyses were inadequate.

(Docket No. 16 at 19–17.)

When evaluating medical opinions, the presiding ALJ is not required to “defer or give any

specific evidentiary weight, including controlling weight, to any medical opinion(s),” but is instead

directed to consider the “persuasiveness” of the medical opinions based on five categories, which

include supportability, consistency, the provider’s relationship with the claimant, the provider’s

specialization, and other factors such as familiarity with the disability program’s policies. 20

C.F.R. § 404.1520c(a)-(c).8

Supportability and consistency are the “most important factors” in this analysis. Id. §

404.1520c(a). In assessing supportability, medical opinions and prior findings are “more

persuasive” if the objective medical evidence and supporting explanations that are used to support

those opinions or findings are “more relevant.” Id. § 404.1520c(c)(1). In assessing consistency,

medical opinions and prior findings are “more persuasive” if they are “more consistent” with

evidence from other medical and nonmedical sources. Id. § 404.1520c(c)(2). These two most

important factors – supportability and consistency – must be explained, while the other factors

may be explained. Id. § 404.1520c(b)(2). To determine the persuasiveness of a particular medical

opinion, a court must evaluate whether the ALJ properly considered the factors set forth in the

regulations. Toennies v. Comm’r of Soc. Sec., No. 1:19-CV-02261, 2020 WL 2841379, at *14

(N.D. Ohio June 1, 2020) (quoting Ryan L.F. v. Comm’r of Soc. Sec., No. 6:18-cv-01958, 2019

WL 6468560, at *4 (D. Or. Dec. 2, 2019)).

The applicable SSA regulations “require that the ALJ provide a coherent explanation of

his reasoning.” Lester v. Saul, No. 5:20-cv-01364, 2020 WL 8093313, at *14 (N.D. Ohio Dec. 11,

2020), report and recommendation adopted sub nom. Lester v. Comm’r of Soc. Sec., No. 20-1364,

2021 WL 119287 (N.D. Ohio Jan. 13, 2021). The ALJ must provide a “minimum level of

8 This regulation changed the articulation required by ALJs when considering medical

opinions. The prior regulations were interpreted to set forth a general hierarchy of medical source

opinions. 20 C.F.R. § 404.1527. Although the new regulations have eliminated this hierarchy, an

ALJ must still “‘articulate how [he/she] considered the medical opinions’ and ‘how persuasive

[he/she] find[s] all of the medical opinions.’” Toennies v. Comm’r of Soc. Sec., No. 1:19-CV-

02261, 2020 WL 2841379, at *14 (N.D. Ohio June 1, 2020) (quoting Ryan L.F. v. Comm’r of Soc.

Sec., No. 6:18-cv-01958, 2019 WL 6468560, at *4 (D. Or. Dec. 2, 2019)).

articulation” in his determinations and decisions to “provide sufficient rationale for a reviewing

adjudicator or court.” Warren I v. Comm’r of Soc. Sec., No. 20-495, 2021 WL 860506, at *8

(N.D.N.Y. Mar. 8, 2021) (quoting 82 Fed. Reg. 5844-01 (2017)). A failure to meet these

“minimum levels” of articulation “frustrates” the court’s ability to determine if the ALJ’s decision

was supported by substantial evidence. Hardy v. Comm’r of Soc. Sec., 554 F. Supp. 3d 900, 906

(quoting Vaughn v. Comm’r of Soc. Sec., No. 20-1119, 2021 WL 3056108, at *11 (W.D. Tenn.

July 20, 2021)).

On July 28, 2022, Dr. Germek performed a clinical interview and mental status

examination of Plaintiff and reviewed her medical records from 2018 and 2020.9 (AR 536–39.)

The purpose of this undertaking was to “gain more information relating to [Plaintiff’s] level of

functioning and abilities, and to determine the impact of any possible mental health diagnoses on

these.” (AR 536.) Dr. Germek provided a summary of Plaintiff’s personal and family history;

substance-abuse history; legal history; psychiatric history; mental status; medications; work

history; and activities of daily living and functioning. (AR 536–39.) She then provided a summary

of the examination and her findings:

Teresa is a 59-year-old female who states that she has never applied for disability

before. Teresa appeared to be a good historian.

Teresa appears to fall below the average range of intellectual functioning, though

no formal intelligence testing was conducted. She showed evidence of moderate

impairment in her short-term memory. She showed evidence of moderate

impairment in her ability to sustain concentration. She showed no evidence of

impairment in her long-term and remote memory functioning.

Her current psychiatric state was depressed and anxious. She shows evidence of a

moderate impairment in her social relating. She appears to be markedly impaired

9 Dr. Germek’s notes indicate that she reviewed medical records from 2018 and 2020,

rather than 2018 through 2020. (AR 536.) It is unclear if Dr. Germek did not review any records

from 2019 or if this is a typographical error.

in her ability to adapt to change and manage stress. She appears to have had

numerous jobs and last worked in 2018. She appears able to handle finances.

(AR 539.) Finally, Dr. Germek listed four diagnostic impressions for Plaintiff: (1) persistent

depressive disorder, (2) panic disorder, (3) generalized anxiety disorder, and (4) alcohol use

disorder, in sustained remission. (AR 539.)

In her decision, the ALJ found Dr. Germek’s opinion to be “not persuasive or accepted.”

(AR 26.) The ALJ summarized Dr. Germek’s report and opinion as follows:

[Plaintiff] advised Dr. Germek about her mental problems and treatment to date,

and reported she stopped taking her medications in 2021 because she did not want

to take them anymore, but needed them and was in such a deep state of depression

that she did not want to even go to her physician to get the same. The claimant also

reported she was anxious and depressed and having several severe symptoms

typically associated with those conditions at that time.

Dr. Germek interviewed her and noted she appeared to be her stated age and was

fully alert, oriented and cooperative. She also noted the claimant’s speech was

normal, that her responses were coherent and easy to understand, and thought

processes clear and logical for the most part. However, Dr. Germek did note that

she appeared anxious and depressed, that her speech was rapid, responses overly

detailed and difficult to follow, thoughts scattered to some extent, and that she had

difficulty answering questions directly at various times during her evaluation. She

tested the claimant and noted she was able to recall her date of birth and Social

Security number from memory, that she could identify the current President and

four recent ones, four large cities and recall all three items immediately after they

were said to her and after a three-minute delay. Dr. Germek also noted she knew

how many months there were in a year, that she could identify the shape of a ball

and colors of the American flag, spell the word “world” correctly, and name

common objects such as an ink pen and watch. She further noted the claimant had

good vocabulary skills and that she was able to complete simple addition,

subtraction and multiplication problems in her head. However, Dr. Germek did note

that she was unable to perform simple division problems in her head. She concluded

the claimant appeared to be performing in the below average range of intellectual

functioning.

Dr. Germek diagnosed her with generalized anxiety, panic and persistent

depression disorders on that date, and opined she was only moderately limited in

her to ability to concentrate, short-term memory functioning and interact with

others at most because of the same and was not limited in her long-term and remote

memory functioning at all, but appeared to be markedly limited in her ability to

manage stress and adapt to changes based on her subjective report to that effect

(AR 24.) The ALJ then went on to assess the persuasiveness of Dr. Germek’s opinion as

follows:

Dr. Germek’s opinion is not persuasive or accepted; since it appears to have been

based in part on the claimant’s subjective report; because new evidence received at

the hearing level establishes she is not as limited in her ability to interact with

others, manage stress and adapt to changes as she previously opined; it is not

expressed in appropriate vocational terms for assessing mental limitations; and it is

not supported by and is inconsistent with the totality of the evidence in the record

as a whole (Exhibit 9F).

(AR 26.)

In her motion, Plaintiff argues that the ALJ failed to properly address Dr. Germek’s

opinion, particularly her conclusion that Plaintiff was “markedly limited” in her ability to adapt to

change and manage stress. She contends that the ALJ’s analysis “lacks any evidentiary support”

and contains conclusory statements with no explanation. (Docket No. 16 at 20.) For example,

Plaintiff points to the ALJ’s conclusion that Dr. Germek’s opinion “appears to have been based in

part on the claimant’s subjective report.” (Id. at 20.) Plaintiff argues that, in fact, Dr. Germek’s

opinion was based on “evidence,” including the examination she performed. (Id.) Plaintiff points

to specific instances within the opinion that reference “evidence,” including that she “showed

evidence” of moderate impairments in short-term memory and an ability to concentrate, but

“showed no evidence” of impairments in long-term or remote memory. (Id.)

Plaintiff also points to the ALJ’s conclusion that “new evidence received at the hearing

level” contradicted Dr. Germek’s opinion and that her opinion was “inconsistent” with “the totality

of the evidence.” (Id. at 21.) Plaintiff argues, however, that the ALJ failed to specify what the “new

evidence” or “totality of the evidence” was that made Dr. Germek’s opinion less persuasive. (Id.)

Plaintiff contends that the ALJ provided “boilerplate statements” that do not meet the applicable

standards for discussing the persuasiveness of an opinion. (Id.)

In response, the SSA maintains that the ALJ sufficiently discussed the persuasiveness of

Dr. Germek’s opinion. (Docket No. 18 at 11–15.) For supportability, the SSA argues that the ALJ

adequately discussed that Dr. Germek’s opinion was “based in part” on Plaintiff’s subjective

reports. (Id. at 13–14.) The SSA emphasizes that subjective complaints are distinct from objective

medical evidence; that an ALJ may find an opinion to be less supportable when based

“excessively” on subjective complaints; and that adequate supportability discussions may be brief.

For consistency, the SSA argues that Dr. Germek considered Plaintiff’s medical records from only

a limited period of time, 2018 to 2020, but, by contrast, the ALJ was able to consider additional

medical records that were received later. (Id. at 14–15.) The SSA contends that these later records

were not consistent with Dr. Germek’s opinion. (Id. at 14–15.) The SSA further contends that,

although the ALJ did not explicitly reference which new records were inconsistent with Dr.

Germek’s opinion, the ALJ discussed contradicting evidence at other points in the decision and

“considered that there was no evidence of treatment after Dr. Germek’s examination.”

In reply, Plaintiff once again focuses on the fact that Dr. Germek based her opinion on

evidence rather than Plaintiff’s subjective complaints. (Docket No. 21 at 4–5.) Plaintiff argues that

Dr. Germek’s examination revealed “evidence” that Plaintiff had scattered thinking and difficulty

responding to questions, which were sometimes difficult for her to follow. As for the consistency

prong of the ALJ’s analysis, Plaintiff asserts that the ALJ’s reference to unspecified “new

evidence” is a ”vague statement” that makes judicial review impossible.

The ALJ’s brief analysis of Dr. Germek’s opinion, without more explanation or citation to

the record, does not satisfy the standards set forth under the regulations at 20 C.F.R. § 404.1520c.

The ALJ found Dr. Germek’s opinion to be unpersuasive for four reasons: (1) the opinion is “based

in part on [Plaintiff’s] subjective report”; (2) the opinion is “not expressed in appropriate

vocational terms for assessing mental limitations”; (3) new evidence established that Plaintiff was

not as limited in her ability to interact with others, manage stress, and adapt to changes as Dr.

Germek opined; and (4) the opinion is not supported by or consistent with “totality of the evidence

in the record as a whole.” (AR 26.) Although the ALJ offers some explanation for these

conclusions, her decision does not enable this Court to undertake a “meaningful review,” which

“frustrates” the Court’s ability to determine if the ALJ’s decision was supported by substantial

evidence. Terhune, 2022 WL 2910002 at *3; Hardy, 554 F. Supp. 3d at 906.

First, the Court finds that the ALJ’s conclusion that Dr. Germek’s opinion is less persuasive

because it “appears” to have been based, at least in part, on Plaintiff’s subjective complaints is not

based on substantial evidence. This conclusory statement does not refer to any particular subjective

complaints from Plaintiff or explain why Dr. Germek’s reference or consideration of those

statements would render her opinion less persuasive. Further, the ALJ’s statement that it “appears”

that the opinion is based on subjective complaints renders this conclusion almost meaningless. The

ALJ must “provide a coherent explanation of her reasoning,” Lester, 2020 WL 8093313 at *14,

and this hedging language is not coherent or helpful to the Court to assess how and why the ALJ

decided that Dr. Germek’s reliance on Plaintiff’s complaints rendered the opinion less persuasive.

Second, the ALJ concludes that Dr. Germek’s opinion is less persuasive because it is “not

expressed in appropriate vocational terms for assessing mental limitations.” However, the ALJ

fails to identify the vocational terms that Dr. Germek uses that are allegedly inappropriate. The

ALJ also fails to state what “appropriate” vocational terms would be. Further, the ALJ does not

explain how this alleged misuse of terms renders the opinion more or less “relevant” for purposes

of assessing supportability. See 20 C.F.R. § 404.1520c(c)(1). Accordingly, the Court is unable to

assess how and why the ALJ decided that Dr. Germek’s use of certain vocational terms rendered

the opinion less persuasive.

Third, with respect to the ALJ’s conclusion that new evidence contradicts Dr. Germek’s

opinion on Plaintiff’s abilities to interact with others, manage stress, and adapt to changes, the ALJ

does not explain what this new evidence is or how it is inconsistent with Dr. Germek’s opinion.

The ALJ does not point to specific evidence in the record that contradicts or calls into question Dr.

Germek’s position on these limitations. Rather, in its briefing, the SSA argues that the ALJ

discussed this “new evidence” at other points in the decision. (Docket No. 18 at 14–15.) However,

an after-the-fact explanation from the SSA’s counsel, like the one offered here, is insufficient and

can have no impact on the Court’s analysis. See Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515,

524 (6th Cir. 2014) (“In reviewing an ALJ’s findings and conclusions, this Court shall not ‘accept

appellate counsel’s post hoc rationalization for agency action in lieu of [accurate] reasons and

findings enunciated by the Board.’”) (quoting Hyatt Corp. v. N.L.R.B., 939 F.2d 361, 367 (6th Cir.

1991)).

Nevertheless, even if the Court did not consider this argument, it would not be convincing.

As an example of the “new evidence” with which Dr. Germek’s opinion was inconsistent, the SSA

refers to Plaintiff’s May 6, 2019 visit to Maple Street Medical Clinic and the “lack of significantly

abnormal mental status examination findings” in that record. (Id. at 15.) While it is correct that the

ALJ referenced this May 6, 2019 record at one point in her decision, it is not true that the ALJ

found it to be inconsistent with Dr. Germek’s opinion. If the ALJ did find the two to be

inconsistent, she did not make that finding clear to the Court.10

10 The SSA’s argument also ignores the context of Plaintiff’s May 6, 2019 visit to Maple

Street Medical Clinic, which was summarized on a one page form with handwritten notes. (AR

557.) Plaintiff’s chief complaint was described as “discuss medications and disability, acute weight

Fourth and finally, the ALJ states that Dr. Germek’s opinion is not supported by or

consistent with the “totality of the evidence in the record as a whole.” However, the ALJ does not

state which portion of the opinion is inconsistent with the “totality of the evidence” and does not

describe – either generally or specifically – what the evidence shows in totality. This broad

statement does not enlighten the Court on either the relevance or consistency of Dr. Germek’s

opinion.

As it stands, the ALJ’s discussion of Dr. Germek’s opinion leaves the Court to wonder how

the ALJ reached her conclusion. Accordingly, the Court cannot find that the ALJ appropriately

weighed Dr. Germek’s opinion because the ALJ failed to consider the supportability and

consistency factors as required under the regulations. This failure frustrates the Court’s ability to

determine whether Plaintiff’s disability determination was supported by substantial evidence. See

Hardy, 554 F. Supp. 3d at 906; Todd v. Comm’r of Soc. Sec., No. 3:20-cv-1374, 2021WL 2535580,

at *7–8 (N.D. Ohio June 3, 2021) (finding that the “ALJ’s terse reasoning failed to build an

accurate and logical bridge between the evidence and his conclusion that Dr. Sprout’s opinion was

substantially inconsistent with the medical record”). For these reasons, remand is required.

4. The ALJ’s Consideration of Plaintiff’s Mental Limitations

In her fourth and final assertion of error, Plaintiff asserts that her case should be remanded

because the ALJ’s RFC determination is unsupported by substantial evidence due to its failure to

properly account for Plaintiff’s mental limitations. (Docket No. 16 at 21–23.) Specifically, Plaintiff

alleges that the RFC failed to account for her “moderate” limitations in concentration, persistence,

loss, would like psych referral and pain management referral.” (Id.) There is no reference to

Plaintiff’s abilities to interact with others, manage stress, or adapt to changes. Accordingly, the

Court is not persuaded by the SSA’s argument that this particular medical record is the “new

evidence received at the hearing level” that the ALJ believes “establishes [that Plaintiff] is not as

limited in her ability to interact with others, manage stress and adapt to changes.” (AR 26.)

or pace (“CPP”). Plaintiff takes issue with the RFC’s finding that she could maintain CPP for

“simple and low-level detailed tasks” even though the ALJ separately found that Plaintiff had a

“moderate” limitation in CPP. (Docket No. 14-1 at 9.)

Here, because the Court finds that remand of this matter is required so that the ALJ can

properly consider the opinion of Dr. Germek, the Court finds it unnecessary to determine whether

the RFC properly accounted for Plaintiff’s “moderate” limitations in CPP. The ALJ’s

consideration of Dr. Germek’s opinion will necessitate a reconsideration of Plaintiff’s RFC.

Although the ALJ may reach the same conclusion regarding Plaintiff’s RFC – including whether

and to what extent Plaintiff is limited with respect to CPP – it is not necessary to address this final

assertion of error. See Sparks v. Kijakazi, No. 2:21-CV-102, 2022 WL 4546346, at *12 (E.D. Tenn.

Sept. 28, 2022) (citing King v. Kijakazi, No. 1:20-CV-196, 2021 WL 3520695, at *9 (E.D. Tenn.

July 21, 2021)); Palmore v. Comm'r of Soc. Sec., No. 1:20-CV-36, 2021 WL 1169099, at *9 (S.D.

Ohio Mar. 29, 2021) (finding it unnecessary to address remaining assignments of error “[a]s

resolution of this issue on remand may impact the remainder of the sequential evaluation process”).

The Court therefore declines to address Plaintiff's remaining argument regarding the ALJ’s alleged

failure to account for her “moderate” limitations in CPP in her RFC.

V. CONCLUSION

For the above stated reasons, Plaintiff's motion for judgment on the administrative record

(Docket No. 15) is GRANTED, the Social Security Administration’s decision is REVERSED,

and this matter is REMANDED to the Social Security Administration for further administrative

proceedings consistent with the memorandum opinion.

An appropriate Order will accompany this memorandum opinion.

Cun D. HOLMES

United States Magistrate Judge

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