Jones v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CASE NO. 1:25-cv-515

RASHAWNA R. JONES,

DISTRICT JUDGE

Plaintiff, DONALD J. NUGENT

vs. MAGISTRATE JUDGE

JAMES E. GRIMES JR.

COMMISSIONER OF SOCIAL

SECURITY,

REPORT &

Defendant. RECOMMENDATION

Plaintiff Rashawna R. Jones filed a Complaint against the

Commissioner of Social Security seeking judicial review of a decision denying

her application for supplemental security income and disability insurance

benefits. 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

affirm the Commissioner’s decision.

Procedural Background

Previous application. In August 2017, Jones filed applications for

disability insurance benefits and supplemental security income, alleging a

disability onset date in December 2009.1 Tr. 74. In March 2019, after

conducting a hearing at which Jones, represented by counsel, and a vocational

expert testified, Administrative Law Judge (ALJ) Catherine Ma issued a

written decision finding that Jones was not disabled. See Tr. 91. In April 2020,

the Appeals Council affirmed the ALJ’s March 2019 decision. Tr. 97. Because

Jones did not further appeal, the ALJ’s March 2019 decision became the final

decision of the Commissioner as to her August 2017 application.

Current application. In June 2022, Jones filed an application for

supplemental security income, Tr. 191, and in October 2023, she filed an

application for disability insurance benefits, Tr. 217. The amended onset date

for both applications is in January 2022. See Tr. 52. In pertinent part, Jones

alleged that she was disabled and limited in her ability work, due to: bipolar

disorder, depression, anxiety, back injury, L3, L4, and L5 herniated discs,2

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 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, MD, 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, MD, Sacrum (Sacral Region), Spine-health

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

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

osteoarthritis, and sciatic nerve damage. Tr. 223. The Commissioner denied

Jones’s applications initially and on reconsideration. See Tr. 133, 138.

In June 2023, Jones requested a hearing. Tr. 142. In October 2023, ALJ

Eric Westley held a telephonic hearing. Tr. 45. Jones appeared, testified, and

was represented by counsel at the hearing. Tr. 52. Qualified vocational expect

Lauren Petkoff also testified. Tr. 67. In January 2024, ALJ Westley issued a

written decision, in which he found that Jones was not entitled to benefits. Tr.

40.

In February 2024, Jones appealed the ALJ’s decision to the Appeals

Council. Tr. 188. In January 2025, the Appeals Council denied Jones’s appeal

making the ALJ’s January 2024 decision the final decision of the

Commissioner. See Tr. 7.

Jones timely filed this action in March 2025. Doc. 1. In it, she asserts

three issues:

1. The ALJ committed harmful error when he

applied the wrong standard of review when he

adopted the tenor of the residual functional

capacity set forth by the prior Administrative

Law Judge.

2. The ALJ erred when he failed to support his

conclusions or discuss supportability and

consistency when he evaluated the opinion of

the treating source.

3. At Steps Four and Five of the Sequential

Evaluation, the ALJ’s RFC finding that

Plaintiff could perform work at the medium

level of exertion was not supported by

substantial evidence.

Doc. 7, at 1.

Evidence3

Medical Evidence

In April 2022, Jones underwent an MRI of her lumbar spine. Tr. 404.

The MRI indicated canal stenosis4 and bilateral foraminal encroachment

secondary to bilateral foraminal disc herniation at L3 and L4, bilateral

foraminal and nerve root encroachment secondary to broad disc herniation at

L4, and right foraminal and nerve encroachment secondary to central and right

foraminal disc herniation at L5 and S1. Id.

In July 2022, Rachael McLaughlin, APN,5 conducted a follow-up

psychiatric and medication management session with Jones, during which

Jones reported that she felt depressed, anxious, and irritated. Tr. 292–93.

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

generally limited to the evidence cited in the facts portions of the parties’ briefs.

4 Spinal canal stenosis happens when the space around the spinal canal

becomes too narrow, which irritates the spinal cord or the nerves that branch

from it. Spinal Stenosis, Cleveland Clinic Health Library,

https://my.clevelandclinic.org/health/diseases/17499-spinal-stenosis

[https://perma.cc/NT9S-SZL3].

5 APN or APRN is an abbreviation for Advanced Practice Registered

Nurse. Advanced Practice Registered Nurse (APRN), OhioAPRN.com,

http://www.ohioaprn.com/what-is-an-aprn-.html [https://perma.cc/69UR-

XX65].

In August 2022, Joe Tataro, D.C.,6 re-examined Jones for a muscle

strain in her neck and lower back, which occurred in January 2022. Tr. 314.

Dr. Tataro noted that Jones described her treatment as beneficial, but that she

continued to experience pain. Id.

In August 2022, Koralys Carrucini, LSW,7 conducted a counseling

session during which Jones reported that she had previously attended

counseling but stopped due to problems with attendance. Tr. 289. Jones

reported that she felt depressed, which was exacerbated by her physical health

concerns, and requested bi-weekly counseling sessions. Tr. 289–90.

In October 2022, Jones presented to the emergency room due to flank

pain. Tr. 336. Emergency department staff treated Jones for flank pain and

muscle strain. Tr. 336. She received pain medication and was directed to follow

up with internal medicine. See Tr. 336, 369.

In December 2022, Jones underwent an x-ray of her lumbar spine, which

revealed mild arthritis and a normal alignment. Tr. 383.

In April 2023, during a follow-up counselling session, Social Worker

Carrucini noted that Jones described recent altercations with her sons and

that she was taken to jail twice. Tr. 407. Jones also reported recent grief

following the passing of two family members and that she felt hopeless,

irritable, angry, and a lack of motivation. Tr. 407–10.

6 The abbreviation “D.C.” stands for Doctor of Chiropractic.

7 The abbreviation “LSW” stands for Licensed Social Worker.

In June 2023, Melinda Lawrence, M.D., diagnosed Jones with greater

trochanteric bursitis of left hip and lumbar spondylosis8 and administered an

injection. Tr. 521. Dr. Lawrence noted that Jones’s 2022 spinal MRI showed

some progressive narrowing of her spine compared to an MRI performed in

2018. Id.

In July and August 2023, Jones continued chiropractic treatment and

though she reported stiffness with the symptoms greater on her right side with

the pain affecting her sleep, she later reported “her neck feels less restricted

and sore.” Tr. 511, 512.

Consultative Examiner

In December 2022, Dr. Dorothy Bradford performed a consultative

examination. Tr. 385–393. Dr. Bradford assessed that Jones has mild

degenerative joint disease of the lumbar spine without radiculopathy with

comorbid conditions of hypertension and depression, and that “[t]here are no

activity restrictions.” Tr. 393.

State Agency Reviewers

In October 2022, state agency psychological reviewer, Karla Delcour,

Ph.D., opined that Jones could understand, remember, and carry out simple

one- to two-step instructions in a structured and predictable setting. Tr. 111–

8 Spondylolysis is the medical term for a small crack or break between

two vertebrae in the spine. It most commonly impacts the lower, or lumbar,

spinal region. Spondylolysis, Cleveland Clinic Health Library,

https://my.clevelandclinic.org/health/diseases/10303-spondylolysis

[https://perma.cc/DW7M-JUUY].

112. In May 2023, on reconsideration, Robert Baker, Ph.D., generally affirmed

the earlier psychological limitations, but found that Jones capable of one- to

three-step tasks. Tr. 123–24.

In January 2023, state agency reviewer, Dr. Steve McKee, opined that

Jones was limited to the medium level of exertion with additional limitations.

Tr. 109–111. In May 2023, on reconsideration, Venkatachala Sreenivas, M.D.,

generally affirmed Dr. McKee’s findings. Tr. 121–22.

Opinion Evidence

In June 2023, Nurse McLaughlin completed a Mental Residual Capacity

Assessment. Tr. 429–431. Nurse McLaughlin noted that Jones attributes her

mental health symptoms “to her chronic pain, intermittent pain exacerbation,

and financial distress.” Tr. 431.

Function Report

In September 2022, Jones completed a function report in which she

reported the following conditions: bipolar depression, anxiety disorder,

“exacerbated chronic back/lower lumbar pain,” and sciatic nerve and lower

lumbar damage. Tr. 233. Jones described that, when she was not working part-

time, she spent the majority of her day in bed. Tr. 235. With regard to her

ability to take care of personal needs or medication, Jones reported she needed

reminders on her phone or from her sons. Tr. 236.

Hearing Testimony

Jones testified that she initially applied for disability in 2017, when she

lost part of her finger and was unable to work as she could no longer type at a

certain speed. Tr. 55–56. Jones explained that since then, her condition

worsened and she was no longer comfortable trying to do anything at the level

of what she was used to doing. Tr. 57. Jones described a fall in January 2022,

which “made everything worse” and that she has been to physical therapy since

that fall. Id.

Jones explained that she worked a split shift, meaning part-time in the

morning and part-time in the afternoon, and in between these shifts she was

“basically glued to [her] TENS unit” to help with her lower back, shoulder, and

neck pain. Tr. 58. She also stated that she was reinjured in July, so she

returned to therapy to concentrate on her neck, and that her treatment

generally consisted of “pain meds, pain management, [and] physical therapy.”

Id.

Jones testified that she could stand for 10 minutes and sit for up to two

hours while driving for work, after which she would have a break from work

and went home “to recharge” and “get on my TENS unit and, you know, then

go back for the afternoon[.]” Tr. 60. She also stated that, while she tried “not

to lift too much of anything,” she could lift about 10 to 15 pounds. Tr. 61. Jones

estimated that she called off work once or twice a week because of her pain and

that her worst pain was in her hip and back. Tr. 63–64.

Vocational Expert

Qualified vocational expert, Lauren Petkoff, testified during the

hearing. In response to the ALJ’s first hypothetical involving a person with a

residual functional capacity (“RFC”)9 to perform work at the medium level of

exertion with additional limitations, Petkoff testified that the hypothetical

individual could not perform Jones’s past work, but could perform jobs such as

hospital food service worker, linen room attendant, or rug inspector helper. Tr.

68. Petkoff further opined that if the hypothetical individual were limited to

work at the light level of exertion, she could perform jobs as a marker, inspector

and hand packager, or router Tr. 69. She further opined that if the hypothetical

individual were off task 20% of the time or absent twice a month, then work

would be precluded. Tr. 69–70.

ALJ’s Decision

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

1. The claimant meets the insured status

requirements of the Social Security Act

through June 30, 2021.

2. The claimant has not engaged in substantial

gainful activity since November 16, 2018, the

alleged onset date (20 CFR 404.1571 et seq.,

and 416.971 et seq.).

9 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).

3. Since the alleged onset date of disability,

November 16, 2018, the claimant has had the

following severe impairments: degenerative

disc disease, neurocognitive disorder,

diabetes mellitus, obesity, chronic ischemic

heart disease, osteoarthritis and allied

disorders, and stroke (20 CFR 404.1520(c)

and 416.920(c)).

4. Since November 16, 2018, the claimant has

not had 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 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire

record, I find that since November 16, 2018,

the claimant has the residual functional

capacity to perform light work as defined in

20 CFR 404.1567(b) and 416.967(b) except:

the claimant could stand or walk for 4 hours

in an 8-hour workday. He could occasionally

climb ramps or stairs. He could never climb

ladders, ropes, or scaffolds. He could

frequently balance. He could occasionally

stoop, kneel, crouch, or crawl. He could

perform occasional bilateral overhead

reaching. He would be limited to no exposure

to unprotected heights or commercial driving.

He would be limited to perform simple,

routine tasks, but not at a production rate

pace; and limited to occasional routine

workplace changes.

6. The claimant has no past relevant work (20

CFR 404.1565 and 416.965).

7. Prior to the established disability onset date,

the claimant was an individual closely

approaching advanced age. On March

14.2024, the claimant’s age category changed

to an individual of advanced age (20 CFR

404.1563 and 416.963).

8. The claimant has at least a high school

education (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not an issue in

this case because the claimant does not have

past relevant work (20 CFR 404.1568 and

416.968).

10. Prior to March 14, 2024, the date the

claimant’s age category changed, considering

the claimant’s age, education, work

experience, and residual functional capacity,

there were jobs that existed in significant

numbers in the national economy that the

claimant could have performed (20 CFR

404.1569, 404.1569a, 416.969, and 416.969a).

11. Beginning on March 14, 2024, the date the

claimant’s age category changed, considering

the claimant’s age, education, work

experience, and residual functional capacity,

there are no jobs that exist in significant

numbers in the national economy that the

claimant could perform (20 CFR 404.1560(c),

404.1566, 416.960(c), and 416.966).

12. The claimant was not disabled prior to March

14, 2024, but became disabled on that date

and has continued to be disabled through the

date of this decision. His disability is expected

to last twelve months past the onset date (20

CFR 404.1520(g) and 416.920(g)).

13. The claimant was not under a disability

within the meaning of the Social Security Act

at any time through June 30, 2021, the date

last insured (20 CFR 404.315(a) and

404.320(b)).

Tr. 1003–1014.

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

1. The ALJ effectively applied the current Earley standard for

subsequent applications based on a new period of time.

Jones first asserts that the ALJ erred by adopting ALJ Ma’s RFC while

also finding that there was new and material evidence. See Doc. 7, at 8 (citing

Tr. 24). Specifically, she asserts that “[a]dopting the tenor of [the prior] RFC

finding that [she] could perform work at the medium level of exertion was an

incorrect application of res judicata as set forth by the Sixth Circuit in Earley10

… wherein it was determine that a new application was entitled to a fresh look

for a new period of alleged disability.” Doc. 7, at 9. Though Jones recognizes

that “the ALJ acknowledged a change in [her] condition,” she claims that “the

ALJ erroneously adopted the tenor of the RFC which had been adopted in

2019.” Id. For the following reasons, the ALJ did not err.

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.

10 See Earley v. Comm’r of Soc. Sec., 893 F.3d 929 (6th Cir. 2018).

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, although the ALJ stated that Drummond applied, Tr. 24, the ALJ

did what Earley and its progeny instruct––he took a “fresh look” and

considered the entire record including the new evidence. 893 F.3d at 934. The

fact that he ultimately reached a similar conclusion as ALJ Ma does not itself

demonstrate an error. Indeed, Jones acknowledges that the ALJ did not state

he relied on the prior ALJ’s determination. See Doc. 7, at 11. In fact, the ALJ

expressly recognized that he “is not bound to the previous decision.” Tr. 24.

Jones also notes that the ALJ explained “there was new and material evidence

that [her] impairments had changed since the prior determination” and stated

that “the RFC was a departure from the prior determination.” Id. Nevertheless,

Jones asserts that “the ALJ essentially adopted the findings of the prior ALJ

when he failed to independently formulate an RFC consistent with [her]

impairments and symptoms for the new period of disability.” Id. at 12. Jones,

however, provides no citation to support this claim. Moreover, review of the

ALJ’s decision belies this claim and shows that Jones is effectively trying to

fell a strawman.11

While the ALJ recognized that Jones had filed a previous application in

2017, he also specifically recognized that Jones’s current case arose out of a

new application for a new period of disability and involved new evidence. Tr.

23–24 (explaining that the new evidence “demonstrates additional severe

impairments” and that more recent regulations “require[] a different

analysis”). He further found that Jones “has submitted new and substantial

evidence since the previous decision establishing a change in her condition.”

Id. at 24. And the ALJ’s decision demonstrates that he considered the new

evidence. See e.g., Tr. 31 (discussing Jones’s hip injury and related effects and

treatment in 2022); Tr. 31–35 (summarizing physical and psychological

treatment records from 2022 and 2023). So, the ALJ’s decision demonstrates

he did what Earley required—he took a “fresh look” at the Jones’s condition

and considered the new evidence relevant to this application period.

Jones’s first issue is, thus, meritless and provides no basis for remand.

11 Jones repeatedly asserts that the ALJ applied the wrong standard of

review. See Doc. 7, at 8, 12. But a standard of review is what a court performing

an appellate function applies when reviewing a subornative adjudicator’s

decision. See Standard of Review, Black’s Law Dictionary (12th ed. 2024).

2. The ALJ properly assessed the medical opinions of record on

remand.

For her second issue, Jones argues that ALJ “the ALJ failed to offer any

support for []his determination” that she was able to sustain full-time work

“and failed to discuss whether this opinion was consistent with the medical

evidence in this matter.”12 Doc. 7, at 15.

The Commissioner is required to evaluate the persuasiveness of all

medical opinions using the following factors: supportability; consistency;

treatment relationship, including the length, frequency, purpose, and extent;

specialization; and other factors. 20 C.F.R. §§ 416.920c(a), 416.920c(c)(1)–(5).

Supportability and consistency are the most important factors. 20 C.F.R. §

416.920c(a). Supportability means that “[t]he more relevant the objective

medical evidence and supporting explanations presented by a medical source

are to support his or her medical opinion[] … the more persuasive the medical

opinions … will be.” 20 C.F.R. § 416.920c(c)(1). Consistency means “[t]he more

consistent a medical opinion[] … is with the evidence from other medical

sources and nonmedical sources in the claim, the more persuasive the medical

opinion[] … will be.” 20 C.F.R. § 416.920c(c)(2). The Commissioner must

12 To the extent that Jones is attempting to argue that regulations require

the ALJ discuss the supportability and consistency of his own opinions, see

Doc. 7, at 16, she has misread the applicable regulation, see 20 C.F.R. §

416.920c(b)(2) (requiring an ALJ consider the supportability and consistency

of medical opinion evidence). Instead, for purposes of this Court’s review, the

ALJ’s conclusions need only be supported by substantial evidence. Biestek, 587

U.S. at 99.

explain the supportability and consistency factors when discussing a medical

opinion. 20 C.F.R. § 416.920c(b)(2). “[A]n ALJ need not,” however, “specifically

use the terms ‘supportability’ or ‘consistency’ in his analysis.” Cormany v.

Kijakazi, No. 5:21-cv-933, 2022 WL 4115232, at *3 (N.D. Ohio Sept. 9, 2022)

(citing cases). The Commissioner is not required to discuss the remaining

factors. Id. “A reviewing court evaluates whether the ALJ properly considered

the factors as set forth in the regulations to determine the persuasiveness of a

medical opinion.” Toennies v. Comm’r of Soc. Sec., 2020 WL 2841379, at *14

(N.D. Ohio June 1, 2020) (internal quotation marks and citation omitted).

Here, Jones’s argument is apparently about the ALJ’s consideration of

McLaughlin’s assessment. Jones spends over two pages citing various medical

evidence, Doc. 7, at 13–15, but provides the Court with only two paragraphs of

legal argument, id. at 15–16. As an initial issue, much of the evidence cited in

support of her second issue with respect to McLaughlin’s assessment was not

provided in the Facts section of Jones’s brief. Compare Doc. 7, at 2–5, with Doc.

7, at 14–15. This matters because, as the Court’s Initial Order states: “[t]he

Court will not consider facts referenced in a party’s argument unless those

facts have been set out in the Facts section of the party’s brief.” Doc. 4, at 4.

Jones’s counsel has been repeatedly warned that evidence cited for the first

time in a given argument section will not be considered. See, e.g., Milliron v.

Comm’r of Soc. Sec., No. 22-cv-1200, 2023 WL 4211041, at *8 n.10 (N.D. Ohio

March 20, 2023), report and recommendation adopted, 2023 WL 4205214 (N.D.

Ohio June 27, 2023); Mencke v. Comm’r of Soc. Sec., Case No. 21-cv-2298, 2022

WL 2758577, at *1 n.2 (N.D. Ohio July 14, 2022). Without the factual details

of McLaughlin’s assessment, which are cited first in Jones’s argument section,

the Court is left with little to consider in regard to Jones’s second issue.

Jones’s two-paragraph argument also does not show how the ALJ’s

findings that McLaughlin’s opinion was unpersuasive failed to comply with

applicable regulations. Jones says that the “ALJ failed to offer any support for

this determination [rejecting McLaughlin’s opinion] and failed to discuss

whether [McLaughlin’s] opinion was consistent with the medical evidence in

this matter.” Doc. 7, at 15. But just because the ALJ did not use the word

“consistent” doesn’t mean that the ALJ erred, because the ALJ “need not

specifically use the terms ‘supportability’ or ‘consistency’ in his analysis.”

Cormany, 2022 WL 4115232, at *3 (collecting cases); see also Kraig v. Kijakazi,

No. 1:21-cv-1253, 2022 WL 4232692, at *9 (N.D. Ohio Sept. 14, 2022) (ALJ’s

evaluation of opinion evidence read “in the context of the decision as a whole”

contained sufficient articulation for discounting the opinion) (collecting cases).

Instead, the ALJ was simply required to consider how this opinion compared

to the other medical evidence of record. 20 C.F.R. § 416.920c(c)(2). The ALJ

did that. See e.g., Tr. 36 (stating that McLaughlin’s findings of “marked and

extreme limitations are not consistent with or supported by the record and

appear to be based on the claimant’s subjective complaints” and then

proceeding to detail evidence and subjective symptom descriptions that the

ALJ considered). Plus, when the ALJ’s decision is viewed as a whole, it is

apparent that the ALJ appropriately considered the consistency of

McLaughlin’s opinion because he looked to the evidence underlying

McLaughlin’s opinion––i.e. Jones’s subjective complaints––and highlighted

the inconsistencies between that evidence and the opinion . See Tr. 36–38; see

also Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir. 2014)

(reiterating that the ALJ need not repeat findings found elsewhere in the

decision because the decision is read as a whole).

Jones also disagrees with the ALJ’s finding that McLaughlin’s opinion

“was an overestimate of [her] functioning[,]”13 Doc. 7, at 14–15 (citing Tr. 36),

and claims that “the ALJ failed to support his erroneous conclusion that

[McLaughlin’s opinion] was an overestimate[.]” id. at 16. She also argues that

the “ALJ erred when he failed to consider the combination of [her]]

impairments.” Doc. 7, at 15. Each of these arguments amounts to a claim that

the ALJ’s decision is not supported by substantial evidence and appears to be

based on Jones’s alternative interpretation of the evidence. This argument

fails. For starters, to the extent that Jones believes evidence exists to support

her alternative interpretation, her belief does not mean that the ALJ failed to

consider the entire record or otherwise inadequately evaluated the evidence.

13 Although the ALJ concluded that McLaughlin’s opinion was “an

overestimate of [Jones’s] functioning,” Tr. at 36, it is apparent in context that

the ALJ meant that McLaughlin underestimated Jones’s functioning. Indeed,

Jones’s argument appears to be based on the conclusion that the ALJ should

have found that Jones was more limited than the ALJ determined.

And the ALJ’s decision belies such argument. The ALJ specifically described

the aspects of Jones’s subjective complaints that showed her ability to prepare

meals, pay bills, shop, live with others, handle her own care and care for her

pets, and attend doctors’ appointments, Tr. 36. After addressing Jones’s own

statements, the ALJ assessed the limitations that he found were supported.

Tr. 36–37. The fact that Jones points to other evidence and believes that the

ALJ should have reached a different conclusion does not mean the ALJ failed

to consider certain evidence or that the ALJ’s conclusion was unsupported. It

is entirely possible for the record to support two different, opposite,

conclusions. Jones, 336 F.3d at 477.

Additionally, to the extent that Jones is claiming that the ALJ didn’t

consider her impairments, the ALJ expressly stated that he considered the

entirety of the record. See e.g., Tr. 30. And Jones offers no evidence to

contradict the ALJ’s statement or for her assertion that the ALJ failed to

consider the combination of her impairments. So, the ALJ’s statement that he

considered the entirety of the record is presumed accurate. See NLRB v.

Newark Elec. Corp., 14 F.4th 152, 163 (2d Cir. 2021); see also United States v.

Chemical Found., Inc., 272 U.S. 1, 14–15 (1926) (“The presumption of

regularity supports the official acts of public officers, and, in the absence of

clear evidence to the contrary, courts presume that they have properly

discharged their official duties.”).

Jones’s second issue does not provide a basis to remand.

3. The ALJ appropriately considered the evidence when assessing

the functional limitations to Jones’s RFC.

As her final argument, Jones asserts that, “[b]ased on the combination

of [her] problems, as set forth in the preceding Arguments, [she] had

limitations which affected her ability to engage in the basic mental demands

as set forth in Ruling 83-10 as well as limitations with her ability to stand/walk

the requisite 6 hours a day as required for work at the medium level of

exertion.” Doc. 7, at 18. Specifically, Jones argues that “these limitations

precluded” her from working at the medium level of exertion so, she concludes,

that the ALJ’s determination “was not supported by substantial evidence

requiring a reversal or remand.” Id.

Jones’s argument is easily dispatched. The entirety of Jones’s third issue

comes down to the assertion that evidence supports her assertion that “these

limitations”––for which she provides no supporting or descriptive citation––

“precluded her from the ability to engage in substantial gainful activity.” Doc.

7, at 18 (generally refencing “the preceding Arguments” for support of her

alleged great limitations). But Jones’s task before this Court is to show that

substantial does not support the ALJ’s determination. Simply, opining that

other evidence supports her preferred conclusion does not help Jones achieve

that task. See Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997) (“The decision

of an ALJ is not subject to reversal, even if there is substantial evidence in the

record that would have supported an opposite conclusion, so long as substantial

evidence supports the conclusion reached by the ALJ.”). Instead of

demonstrating that the ALJ’s determination lacked support, Jones asserts

without record citation that “the ALJ erroneously did not build an accurate

and logical bridge between the evidence documenting [her] disabling problems

and the ALJ’s decision to deny benefits.” Doc. 7, at 18. But, by omitting any

record citation to the evidence she believes supports greater limitations, Jones

failed to “build an accurate and logical bridge” between the evidence and her

own argument.

Moreover, as the above Recommendation illustrates, none of Jones’s

“preceding Arguments” were persuasive or otherwise provided a basis for

remand. So Jones’s third issue does not provide a basis for remand.

Conclusion

For the reasons explained above, I recommend that the Court affirm the

Commissioner’s decision.

Dated: September 23, 2025

/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).