Brown

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARK BROWN, CASE NO. 3:24-CV-02044-AMK

Plaintiff,

vs. MAGISTRATE JUDGE AMANDA M. KNAPP

COMMISSIONER OF SOCIAL SECURITY,

MEMORANDUM OPINION AND ORDER

Defendant.

Plaintiff Mark Brown (“Plaintiff” or “Mr. Brown”) seeks judicial review of the final

decision of Defendant Commissioner of Social Security (“Commissioner”) denying his

application for Supplemental Security Income (“SSI”). (ECF Doc. 1.) This Court has

jurisdiction pursuant to 42 U.S.C. § 405(g). This matter is before the undersigned by consent of

the parties under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (ECF Doc. 7.)

For the reasons set forth below, the Court VACATES and REMANDS the case pursuant

to 42 U.S.C. § 405(g) sentence four, for further proceedings consistent with this Order. On

remand, the ALJ should consider the entire record and provide a clear, accurate, and well-

reasoned explanation to support his findings regarding the persuasiveness of all medical opinion

evidence, including the medical opinion of treating physician Christopher Smallwood, M.D., and

ensure that his stated rationale builds an accurate and logical bridge between the evidence and

the result.

I. Procedural History

Mr. Brown filed a prior SSI application on December 31, 2018, alleging disability

beginning on January 18, 2017. (Tr. 136.) On May 6, 2020, an Administrative Law Judge

(“prior ALJ”) found Mr. Brown was not disabled from December 19, 2018, the date the

application was filed, through the date of the decision. (Tr. 134-57.) He sought review of the

decision by the Appeals Council, which declined to review the decision. (Tr. 852.)

On May 5, 2021, Mr. Brown filed the instant application for SSI, alleging a disability

onset date of January 18, 2018. (Tr. 158.) He later amended the alleged onset date to May 7,

2020. (Tr. 900-01.) Mr. Brown alleged disability due to scoliosis, spondylolisthesis,

spondylolysis, chronic obstructive pulmonary lung disease (“COPD”), anxiety, and depression.

(Tr. 159.) Mr. Brown’s application was denied at the initial level (Tr. 158) and upon

reconsideration (Tr. 179), and he requested a hearing (Tr. 197-98). On April 5, 2022, a

telephonic hearing was held before an ALJ. (Tr. 106-33.) On April 13, 2022, the ALJ issued a

decision, finding Mr. Brown has not been under a disability within the meaning of the Social

Security Act from May 7, 2020, through the date of the decision. (Tr. 88-105.) Mr. Brown

sought review of the decision by the Appeals Council. (Tr. 257-58.) On December 14, 2022, the

Appeals Council found no reason to review the decision, and Mr. Brown filed a Complaint in

this Court challenging the Commissioner’s final decision denying his social security disability

benefits. (Tr. 879, 886.) Upon joint stipulation of the parties, the case was remanded to the

Commissioner pursuant to Sentence Four of 42 U.S.C. § 405(g). (Tr. 886-87.)

On remand, the Appeals Council ordered that the ALJ: (1) determine whether new

evidence warranted a change in the 2020 decisional findings in accordance with AR 98-4(6) and

Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997); (2) give further

consideration to the medical source opinions; (3) give further consideration to Plaintiff’s residual

functional capacity (“RFC”) and provide appropriate rationale with specific references to

evidence of record in support of the assessed limitations; and (4) if warranted by the expanded

record, obtain supplemental evidence from a vocational expert. (Tr. 892-93.)

On February 23, 2024, a hearing was held before a new ALJ. (Tr. 825-51.) The ALJ

held a supplemental hearing on August 19, 2024 (Tr. 1564-84) and issued a decision on

September 19, 2024, finding Mr. Brown had not been disabled from May 5, 2021, the date the

application was filed (Tr. 797-824). Mr. Brown filed a Complaint seeking judicial review on

November 22, 2024. (ECF Doc. 1.) The matter is fully briefed. (ECF Docs. 8, 12, 13, 14.)

II. Evidence

A. Personal, Educational, and Vocational Evidence

Mr. Brown was born in 1984 and was 33 years old on the alleged disability onset date,

making him a younger individual under Social Security regulations on the alleged onset date.

(Tr. 159, 169.) He did not complete a high school education. (Tr. 287.) Mr. Brown has not

worked since January 18, 2018, the alleged onset date. (Tr. 159, 169.)

B. Medical Evidence

Although the ALJ found severe physical and mental impairments (Tr. 803), Mr. Brown

only challenges the ALJ’s findings related to his physical limitations (ECF Docs. 8, 12, 14). The

evidence summarized herein therefore relates only to Plaintiff’s physical impairments.

1. Relevant Treatment History

i. Evidence Predating May 2020 ALJ Decision

On January 18, 2018, Mr. Brown underwent a surgical anterior approach lumbar

interbody fusion at L5-S1 with a mechanical interbody device placement to treat lumbar

spondylolisthesis at L5-S1 level and spondylolysis, lumbar region. (Tr. 393, 397.) At a follow-

up appointment in April 2018, Mr. Brown’s surgeon, Robert Raymond Crowell, M.D., diagnosed

him with lumbar spondylolysis at L5 and status post lumbar spinal fusion. (Tr. 519.) Dr.

Crowell ordered x-rays of the lumbar spine, which showed: anterior interbody fusion at L5-S1

with intervertebral disc spacer in place; mild retrolisthesis of L2 on L3 redemonstrated; and mild

dextroconvex scoliosis. (Tr. 521.) The remainder of the lumbar spine was in good anatomical

alignment without evidence of acute fracture. (Id.)

On January 31, 2019, Mr. Brown presented to Stephanie Ann Young, PA-C, at Marion

Area Physicians Spine Surgery for a one-year follow-up from surgery. (Tr. 539-41.) He

reported continued bilateral low back pain that had not improved with a recent course of physical

therapy. (Tr. 540.) He walked and transferred without difficulty. (Id.) His pain was 7/10 but

controlled with Tylenol and medical marijuana. (Id.) A physical examination showed no

palpable tenderness or local deformity of the spine, strong and symmetric lower extremity motor

function, and slow and cautious walking. (Tr. 540-41.) As Mr. Brown’s back pain had failed to

improve, PA-C Young ordered a CT scan of the lumbar spine. (Tr. 541.)

The CT scan was performed on February 14, 2019 at Marion General Hospital. (Tr. 542-

56.) It showed a mild anterior disc bulge and spur at L1-2, T12-L1, no evidence of

spondylolisthesis or central spinal canal stenosis, and bilateral pars defect and foraminal

narrowing at L5-S1. (Tr. 545-56.) At a follow-up appointment that day, Mr. Brown’s physical

examination findings were unchanged from the previous visit. (Tr. 548.) Mr. Brown was told to

return in six months for a recheck. (Tr. 549.)

On May 21, 2019, Mr. Brown presented to his primary care provider, Christopher

Smallwood, M.D., at Marion Area Physicians Primary Care. (Tr. 396-400.) He reported his pain

was “really no better” and endorsed radicular pain, neuropathy, and numbness of his thoracic and

lower spine. (Tr. 398.) He was not taking pain medication but was taking marijuana and

diazepam. (Id.) He was also using a bone growth stimulator and following with spinal surgery.

(Id.) He had no constitutional, neurological, or psychological deficits on examination. (Tr. 400.)

Mr. Brown declined a referral to pain management, choosing to continue taking medical

marijuana for pain. (Id.)

Mr. Brown returned to see PA-C Young on August 27, 2019. (Tr. 560-62.) He reported

continuous, stabbing back pain at a 9/10. (Tr. 561.) He had recently run out of bone growth

stimulator, which he had used 147 times since February 2019. (Id.) He walked and transferred

without difficulty and denied lower extremity pain, weakness, or numbness. (Id.) PA-C Young

noted increased kyphosis at his midthoracic midline, where he reported experiencing burning

pain. (Id.) His spinal examination showed no palpable tenderness or local deformity and “his

lower extremity motor” was strong and symmetric with “slow and cautious walking.” (Tr. 561-

62.) Lumbar x-rays taken that same day noted stable hardware, no change in alignment at L5-

S1, and degenerative endplate changes in the upper lumbar spine indicating disc degeneration.

(Tr. 562; see Tr. 557-58.) Mr. Brown opted to continue conservative pain management strategies

rather than more invasive pain management or a second surgery. (Id.)

Mr. Brown followed up with Dr. Smallwood on September 23, 2019. (Tr. 403-06.) He

continued to report low back pain but denied it was getting worse. (Tr. 404.) He was not

interested in further surgery or additional medication/pain management. (Id.) He elected to

continued medical marijuana. (Id.) He had no constitutional, neurological, or psychological

deficits on examination. (Tr. 405.)

A January 13, 2020 x-ray of the lumbar spine showed no significant change from August

2019. (Tr. 569-71.) Mr. Brown attended a follow-up with Dr. Crowell in spinal surgery that

same date. (Tr. 572-75.) He reported aching, sharp, and shooting continuous back pain that was

7/10. (Tr. 573.) He denied focal weakness but reported “marked” activity restriction with

sitting, standing, and walking. (Id.) Pain was improved with Tylenol and medical marijuana,

and he was also taking diazepam, doxepin, hydroxyzine, and nicotine polacrilex. (Id.) On

reviewing the x-ray, Dr. Crowell noted that the surgical hardware was in good position without

evidence of failure. (Tr. 574.) He also noted a “reasonable amount of bone mass.” (Id.) He

diagnosed Scheuermann’s kyphosis and pseudoarthrosis of lumbar spine. (Id.) Further surgery

was discussed as “continued findings suggest[ed] failure of fusion” of the anterior lumbar

interbody fusion, but Mr. Brown was not sure he wanted further surgery due to fear of

complications. (Tr. 575.) Dr. Crowell advised against extreme or repetitive trunk bending or

twisting or lifting over 20 pounds. (Id.)

ii. Evidence Postdating May 2020 Decision

Mr. Brown followed up with Dr. Crowell on August 17, 2020, after presenting at the

emergency department a few days earlier due to a marked increase in pain. (Tr. 582.) A CT of

the lumbar spine from the ER showed postsurgical and degenerative changes without acute

abnormality and no evidence of severe spinal canal stenosis. (Tr. 585.) Mr. Brown reported

ongoing low back pain that was 9/10. (Id.) A revision of the fusion surgery was discussed, but

Mr. Brown needed to quit smoking before it became an option. (Id.) On examination, he was

alert, appeared in moderate distress, walked slowly and cautiously, had strong and symmetric

motor in the lower extremities, and showed no palpable tenderness or local deformity of the

spine. (Id.)

On September 28, 2020, Mr. Brown presented to Maegan Alexander, APRN-CNP at

Wyandot Memorial Hospital Physician Services for a routine follow-up after undergoing facet

joint injections in his lower back. (Tr. 427-30.) The injections provided 80% pain relief for the

first five days, but Mr. Brown went to the emergency room when his pain returned. (Tr. 427.)

He was prescribed Norco, which he said did not help; but he also reported his severe pain was

somewhat better. (Id.) He rated his usual pain as 5/10, located across the waistband region.

(Id.) His physical examination noted: tenderness and pain in the lumbar back and over the

bilateral lumbar facet joints, worse over the L3-L4, L4-L5 level; increased pain with facet

loading; negative seated straight leg raises; and strong motor strength bilaterally in the lower

extremities. (Tr. 429.) APRN Alexander discontinued meloxicam, started diclofenac 75 mg a

day for pain, and recommended returning in four to six weeks. (Tr. 430.)

Mr. Brown underwent another CT scan of the lumbar spine on October 7, 2020. (Tr.

589-91.) The scan revealed no significant changes since February 4, 2019, with no acute fracture

or traumatic malalignment, no visualized hardware complications, and small bilateral foraminal

endplate osteophytes resulting in minimal bilateral foraminal narrowing. (Tr. 591.)

Mr. Brown followed up with APRN Alexander on November 9, 2020 (Tr. 422-26),

reporting worsening pain, sleep, and functioning (Tr. 423). APRN Alexander recommended a

second set of medial branch blocks to determine if radial frequency ablation would be

appropriate. (Id.) Mr. Brown declined, stating he would not undergo radial frequency ablation.

(Id.) He also declined follow-up with his spine surgeon and said he would not take routine

medications such as gabapentin. (Id.) He agreed to try Zanaflex as needed to supplement

diclofenac. (Id.) On physical examination, Mr. Brown was not in acute distress and displayed

no motor weakness (including in the lower extremities), but he reported increased low back pain

with bilateral hip flexion and seated straight leg raise. (Tr. 425.) APRN Alexander also noted

mild tenderness over the lower lumbar facet joints, increased pain with facet loading, and intact

sensation in bilateral lower extremities. (Id.) She noted that the most recent CT scan showed

mild degenerative disc disease in the lumbar spine. (Tr. 426.)

Mr. Brown returned to see APRN Alexander on December 16, 2020, reporting continued

severe pain despite activity modification, physical therapy, NSAIDs, and muscle relaxers. (Tr.

419.) An MRI was ordered to aid in determining next treatment steps. (Tr. 422.) The December

30, 2020 MRI showed a stable appearance of the lumbar spine, mild multilevel discogenic

disease and facet joint arthropathy without evidence of central spinal canal stenosis, and

postsurgical changes from the prior interbody fusion surgery at L5/S1 level with minimal

bilateral foraminal narrowing at this level only. (Tr. 431-36.)

On January 18, 2021, Mr. Brown saw APRN Alexander via telemedicine. (Tr. 415-17.)

His overall pain was 8/10 across the waistband region. (Tr. 415.) Based on the MRI results,

APRN Alexander recommended a second set of diagnostic facet joint injections to determine if

radiofrequency ablation would be appropriate, and Mr. Brown agreed to proceed. (Tr. 416.)

APRN Alexander diagnosed chronic low back pain, degenerative disc disease lumbar, lumbar

spondylosis, lumbosacral spondylosis without myelopathy, lumbar post-laminectomy syndrome,

and COPD. (Tr. 418.) She made no medication changes, ordered bilateral facet joint injections,

and recommended physical therapy exercises at home. (Id.)

On January 25, 2021, Mr. Brown attended an appointment at Marion Area Physicians

with Emily R. Brown, CNP. (Tr. 592-96.) He reported his pain was 7/10. (Tr. 593.) He was

informed that Dr. Crowell was no longer recommending additional lumbar surgery since the

October 2020 CT scan showed a solid fusion. (Tr. 594.) On physical examination, Mr. Brown

displayed strong and symmetric lower extremity motor ability and antalgic/waddling gait. (Tr.

595.) He could toe and heel walk with encouragement, had pain with lumbar range of motion in

all directions, had decreased lumbar range of motion, and had pain to light touch in the

lumbosacral region. (Id.) A spinal examination showed hypo-lordosis of lumbar spine but no

thoracic kyphosis. (Id.) CNP Brown ordered x-rays of the lumbar spine, which took place on

January 26, 2021. (Tr. 597-600.) The x-rays showed moderate degenerative changes with

multilevel chronic wedge compression fractures and exaggerated lumbar lordosis, no dynamic

instability, and stable L5-S1 interbody fusion. (Tr. 599.)

Mr. Brown received facet joint injections at L3-L4 and L4-L5 on June 2, 2021, overseen

by Bret M. Bahn, M.D., at Wyandot Memorial Hospital. (Tr. 667-68.) The following month, he

underwent a radiofrequency ablation branch block at L3, L4, and L5. (Tr. 662.)

On September 15, 2021, Mr. Brown attended a follow-up appointment with Dr. Bahn.

(Tr. 657-661.) He expressed concern about an upcoming fishing trip due to continued lower

back pain following the radiofrequency ablation. (Tr. 658). Dr. Bahn advised it can take 10-12

weeks for patients to feel relief from this procedure. (Id.) On physical examination, Mr. Brown

had decreased range of motion, spasms, and tenderness in the lumbar back, tenderness to

palpation over bilateral lower lumbar facet joints, some increased pain with facet loading, and

significant tenderness over the L5 vertebral body areas consistent with his fusion site. (Tr. 660.)

Dr. Bahn diagnosed post laminectomy syndrome of lumbosacral region and prescribed Daypro

600 mg twice daily to treat pain. (Tr. 661.)

On September 28, 2021, Dr. Brown presented to Dr. Smallwood for a checkup. (Tr. 763-

68.) Dr. Smallwood noted that Mr. Brown had been using medical marijuana for worsening

anxiety recently and that he had not needed his inhaler for COPD. (Tr. 765.) He had no

constitutional, cardiovascular, pulmonary, or neurological deficits on examination. (Tr. 767.)

Dr. Smallwood continued Mr. Brown’s medications. (Tr. 766.)

Mr. Brown returned to see Dr. Smallwood on December 21, 2021, for a medication refill

and disability paperwork. (Tr. 779-82). He said he could not work because of his lower back

impairment. (Tr. 782.) He had no neurological or constitutional deficits on examination. (Id.)

Mr. Brown attended physical therapy with Trevor Barth, PT, on April 14, 2022, at Dr.

Smallwood’s referral. (Tr. 1132-36.) He rated his pain as 9/10 in the lower back with shooting

pain up the spine. (Tr. 1133.) A physical examination showed mass loss of range of motion in

the lumbar spine and 4/5 hip and knee flexion on the right and left leg. (Tr. 1134.) Mr. Brown’s

activity tolerance was limited by pain, which affected his functional mobility, but his prognosis

was good. (Id.) PT Barth recommended four weeks of therapy, twice a week. (Tr. 1135.)

On May 10, 2022, Mr. Brown attended his sixth physical therapy appointment with PT

Barth. (Tr. 1351-54.) He reported that he did not feel better with therapy, not even temporarily.

(Tr. 1352.) Since starting, he had continued to display poor posture, could only sit for a few

minutes due to pain, could not lay on the exam table due to pain, showed mass loss of flexion

and extension with pain, and reported his pain was 8/10 without medication. (Tr. 1353.) He

reported being able to walk only a quarter mile, sit or stand no more than 10 minutes, sleep less

than four hours a night, and lift only medium weights. (Tr. 1354.) He experienced pain while

caring for personal hygiene, which he did slowly and carefully. (Id.) As physical therapy had

not been helpful, PT Barth discharged him and referred him back to his doctor. (Id.)

Mr. Brown attended a new patient pain management appointment with Aleksey

Alexander Prok, M.D., at Marion Area Physicians on June 3, 2022. (Tr. 1099-1104.) He

complained of aching, burning, dull, sharp, and throbbing pain in the upper, middle, and lower

back that was 8/10 in severity. (Tr. 1100.) Standing and walking exacerbated his pain. (Id.) He

was not taking any opioid medication. (Id.) A physical examination was positive for arthralgia

and gait problem, obesity, tenderness, anxiety, and a cough. (Tr. 1103.) A spinal examination

revealed tenderness in the lumbar spine, abnormal extension, flexion, lateral bending, and

rotation in both directions, and full strength in both quadriceps. (Tr. 1103-04.) Dr. Prok offered

a spinal cord stimulator trial, but Mr. Brown refused. (Tr. 1104.) He continued Valium as

needed and THC (medical marijuana). (Id.)

On November 15, 2022, Mr. Brown followed up with Dr. Smallwood after a recent

hospital admission for chest pain related to a non-ST elevated myocardial infarction

(“NSTEMI”) with some dyspnea on exertion. (Tr. 1070-73; see Tr. 1295, 1301.) He was

diagnosed with coronary artery disease and associated ischemic cardiomyopathy. (Tr. 1070.) A

stent had been inserted, and Mr. Brown was started on dual antiplatelet therapy consisting of

Entresto, spironolactone, high does tatin, and a beta blocker. (Id.)

On December 25, 2022, Mr. Brown again presented at the Wyandot Memorial Hospital

emergency room with a “cold” feeling in his chest but denied pain and dyspnea. (Tr. 1219.) An

EKG was normal, and a physical examination showed no acute distress, clear lungs, normal

heartrate with no murmurs, radial pulses 2+ equal bilaterally, and no acute musculoskeletal

deformities. (Tr. 1221.) Mr. Brown diagnosed with an NSTEMI and elevated troponin and was

admitted to the hospital. (Tr. 1223.) He was discharged on December 27, 2022 with

prescriptions for Imdur, increased Entresto, and his other medications. (Tr. 1158-59.)

On January 23, 2023, Mr. Brown presented to Kyle Feldmann, M.D., at Ohio Health

Physical Group for a cardiology follow-up. (Tr. 1142-47.) Dr. Feldmann noted that Mr. Brown

was doing well after a staged intervention for coronary artery disease, ischemic cardiomyopathy,

hypertensive heart disease, hyperlipidemia, and episodic tachycardia. (Tr. 1142.) Mr. Brown

was wearing a monitor to evaluate his tachycardia, and Dr. Feldmann scheduled a repeat

echocardiogram in three months. (Id.) He diagnosed coronary artery disease involving native

coronary artery with angina pectoris, chronic systolic heart failure, and ischemic cardiomyopathy

(Tr. 1146) and prescribed 81 mg aspirin to be taken daily (Tr. 1145). Mr. Brown began a cardiac

rehab program on February 10, 2023. (Tr. 1211-1216.)

Mr. Brown followed up with Dr. Smallwood on September 11, 2023. (Tr. 1410-14.) He

continued to take his heart medication and an echocardiogram from earlier in the year showed

his ejection fraction had normalized, though his blood pressure was trending upward. (Tr. 1410.)

His low back pain was stable and managed with medical marijuana (id.), and his cardiomyopathy

symptoms had resolved (Tr. 1213). He had no constitutional or neurological deficits on

examination. (Tr. 1412.) Dr. Smallwood ordered updated blood work. (Tr. 1412-13.)

On January 17, 2024, Mr. Brown attended another appointment with Dr. Smallwood.

(Tr. 1386-89.) He reported that his low back pain was a little worse, and he was awaiting a new

appointment with pain management. (Tr. 1387.) He had no neurological or other deficits on

examination. (Tr. 1389.)

Mr. Brown attended an appointment at Ohio Health Physician Group Pain Management

Marion, on February 18, 2024, with Jamesetta Lewis, D.O. (Tr. 1454-59.) He complained of

persistent pain in the lower back, buttocks, and legs with exacerbating factors of bending

forward, and sitting, standing, or walking for extended periods. (Tr. 1454.) He reported that the

pain felt like being beaten with a baseball bat on bad days but was currently at a 3/10. (Id.) He

experienced occasional leg weakness and found relief by lying on a Tempur-Pedic mattress and

using heat therapy. (Id.) His pain did not interfere with the ability to bathe, dress or groom, he

slept four hours a night, and he walked about a mile a day. (Id.) On examination, Mr. Brown

had 4/5 motor strength in both legs, lumbar flexion limited to 90 degrees, no lumbar extension, a

negative straight leg raise test bilaterally, diminished sensation in the left leg at the L5

dermatome, diminished reflexes at S1 bilaterally, and tenderness at L4-5 and L5-S1. (Tr. 1457.)

He also had normal toe walking but was unable to perform heel walking due to poor balance.

(Id.) Dr. Lewis diagnosed Mr. Brown with chronic pain syndrome, degeneration of lumbar or

lumbosacral intervertebral disc, postural kyphosis of thoracic region, myofascial pain syndrome,

compression fracture of lumbar vertebra, and post laminectomy syndrome of the lumbar region.

(Tr. 1458.) She prescribed gabapentin, discontinued diclofenac gel as ineffective, ordered UDS

and x-rays of lumbar and thoracic spine, and discussed a possible narcotics trial and other

interventions with Mr. Brown. (Id.)

Mr. Brown returned to see Dr. Lewis on March 29, 2024, and reported that he had

stopped using gabapentin due the side effects. (Tr. 1492.) He continued to use marijuana and

inquired about other non-narcotic medications that were not NSAIDs. (Id.) On examination, he

had an antalgic gait, expiratory wheezes on both lungs upon auscultation with unlabored

respirations, and a normal heart rate and rhythm. (Tr. 1494.) A lumbar/thoracic examination

showed full strength in both legs, 2/4 patellar reflex and Achilles reflex bilaterally, and intact

sensation in both legs. (Id.) Dr. Lewis diagnosed Mr. Brown with degenerative disc disease,

lumbar and chronic pain syndrome. (Tr. 1495.) She started Lidoderm patches, ordered a TENS

unit, and ordered an x-ray of the lumbar and thoracic spines. (Id.)

2. Opinion Evidence

i. Treating Sources

a) Emily R. Brown, CNP

On January 25, 2021, CNP Brown wrote a letter in support of Mr. Brown’s SSI

application. (Tr. 1562-63.) She stated that Mr. Brown’s lower back pain had not improved since

his 2018 surgery and greatly impacted his daily functioning and productivity. (Tr. 1562.) She

opined that Mr. Brown had the following impairments: slow and waddling gait with antalgic

pattern related to ongoing chronic lumbar pain; limited range of motion in the lumbar spine with

pain production in all directions of motion; and thoracic kyphosis on spine examination. (Id.)

He could sit, stand, and walk for no more than two consecutive hours in an eight-hour workday,

could only lay flat without limitation, could lift no more than 10 pounds from the floor, and

could not twist his trunk or bend without producing severe pain. (Tr. 1563.) CNP Brown further

opined that Mr. Brown “is permanently disabled as a result of chronic low back pain status post

lumbar spinal fusion surgery,” “meets Social Security listing 1.03 Reconstructive surgery or

surgical arthrodesis of a major weight-bearing joint,” and “meets the functional requirements for

a musculoskeletal listing described at section 1.00 Musculoskeletal System of the listings.” (Id.)

b) Christopher Smallwood, M.D.

Mr. Brown’s primary care provider Dr. Smallwood completed a medical source statement

on December 23, 2021. (Tr. 769-72.) He noted Mr. Brown’s diagnosis of spondylolisthesis, his

symptoms of constant, daily, throbbing, lumbar pain exacerbated by prolonged sitting, standing,

and walking, and clinical findings of abnormal MRI and CT scan. (Tr. 769.)

Dr. Smallwood opined that Mr. Brown could sit for 15 minutes at one time and about two

hours total in an eight-hour workday, stand for 10 minutes at one time, and stand/walk for less

than two hours in an eight-hour workday. (Tr. 770.) He needed to walk around for five minutes

every 15 minutes and would need to take a 10-15-minute break five or six times during the

workday due to his pain/parathesis. (Id.) He required a cane or other hand-held assistive device

some of the time for walking and standing due to pain. (Tr. 771.) Dr. Smallwood further opined

that Mr. Brown could never lift over 50 pounds, rarely lift 10-20 pounds, and occasionally lift

less than 10 pounds; he would likely be off task 25% or more of the workday; and he was

incapable of even “low stress” work. (Id.) His impairments would cause him to be absent more

than four days per month. (Tr. 772.)

Dr. Smallwood completed a second medical source statement on July 25, 2024. (Tr.

1558-60.) He noted Mr. Brown’s diagnoses of spondylolisthesis and cardiomyopathy, his

symptoms of chronic back pain, exercise intolerance, and dyspnea on exertion, and clinical

findings of antalgic gait and abnormal CT and MRI of the spine. (Tr. 1558.)

Dr. Smallwood opined that Mr. Brown could: sit for 30 minutes at a time and four hours

total in an eight-hour workday; stand for 10 minutes at a time; and stand/walk about two hours

total in an eight-hour workday. (Tr. 1559.) He needed to walk for 10 minutes every 20 minutes

in an eight-hour workday and would require unscheduled, 15-20-minute breaks six to seven

times during the workday due to chronic fatigue, pain, and adverse effects of medication. (Id.)

He required a cane or other hand-held assistive device some of the time for walking and standing

due to pain and dizziness. (Tr. 1560.) He could rarely lift 50 pounds, occasionally lift 10-20

pounds, and frequently lift less than 10 pounds; he would be off-task 25% or more of the

workday; he was capable of low-stress work; and he would be absent more than four days per

month. (Id.)

ii. State Agency Medical Consultants

On September 28, 2021, state agency medical consultant Abraham Mikalov, M.D.,

conducted a physical RFC assessment of Mr. Brown. (Tr. 164-66.) Dr. Mikalov considered the

2020 ALJ decision and adopted the same postural limitations. (Compare Tr. 143 with Tr. 164-

65.) He found that Mr. Brown’s allegation of COPD was a new and material change that

required additional environmental limitations. (Tr. 165-66.) He opined that Mr. Brown could:

lift and carry ten pounds occasionally and less than ten pounds frequently; stand or walk for four

hours and sit for six hours in an eight-hour workday; occasionally balance, stoop, crouch, and

climb ramps and stairs; never crawl, kneel, or climb ladders, ropes, and scaffolds; avoid

moderate exposure to extreme cold, heat, wetness, humidity, and fumes, odors, dusts, gases and

poor ventilation; and avoid all exposure to vibrations and hazards such as machinery or

unprotected heights. (Tr. 164-65.) On reconsideration on November 30, 2021, state agency

medical consultant Diane Manos, M.D., affirmed Dr. Mikalov’s findings. (Tr. 174-76.)

C. Function Reports1

Mr. Brown completed an Adult Function Report on July 7, 2021. (Tr. 292-95.) He lived

in a house with his uncle. (Tr. 292.) He was unable to work because he could only stand for 15

minutes and sit for 5 minutes, could not bend over more than a couple times a day, and had to lie

down for at least 30 minutes at a time. (Id.) When he woke up, he did nothing. (Tr. 293.) He

did not care for any other person or animal. (Id.) Before the onset of his conditions, he could do

“everything,” including fish, go to the movies, take family vacations, and hike. (Id.)

1 In addition to Mr. Brown’s own Adult Function Report, the record contains two Third Party Function Reports: one

from Mr. Brown’s uncle, Wesley Weatherholtz, dated January 10, 2022 (Tr. 319-26) and one from his sister, Hollie

Barber, dated January 13, 2024 (Tr. 1046-52). As their reports of Mr. Brown’s functioning are substantively similar

to his own, they are not summarized herein.

Mr. Brown’s conditions caused him to sleep lightly, tossing and turning all night due to

pain. (Id.) He could wash his hair, shower with a shower chair, and dress himself, but he had

difficulty bending over to tie his shoes. (Id.) He did not have problems shaving, feeding

himself, or using the toilet. (Id.) He did not go outside except on flat ground due the risk of

falling; during winter he did not go out at all. (Tr. 294.) When he left the house, he took a car

and drove himself, although he only did so rarely as it increased his pain. (Id.) He shopped for

food and clothing on the computer and less often at stores. (Id.)

Mr. Brown was able to count change and handle a savings account but could not pay bills

as he did not have money. (Id.) His ability to handle money was not affected by his conditions.

(Id.) He took medication and denied any side effects. (Tr. 295.)

D. Hearing Testimony

1. Plaintiff’s 2022 Testimony

At the hearing on April 5, 2022, Mr. Brown responded to questioning by the ALJ and his

attorney. (Tr. 106-33.) Mr. Brown testified that he had not worked since the prior ALJ issued

her 2020 decision. (Tr. 112.) He had completed 11th grade and did not have his GED. (Id.) He

knew how to read and write and could count change. (Tr. 113-14.)

Since Mr. Brown appeared before the prior ALJ, his conditions had worsened. (Tr. 113.)

Since the prior hearing, he had tried cortisone shots, nerve blocks, and radiofrequency ablation to

relieve his pain. (Tr. 121.) The first cortisone shot relieved his pain for five days, but since then

none of the treatment had helped. (Id.)

Regarding his pain, Mr. Brown said his “whole back was messed up,” but he felt the most

pain in his spine, at the site of the hardware from his surgery. (Tr. 122.) He was in pain “all day

every day,” and only experienced relief when he took the narcotics prescribed for him after his

surgery. (Id.) His pain worsened when he stood or sat for too long. (Id.) On a good day, he

could walk or stand for 10-15 minutes before needing to sit and could sit for 10-15 minutes

before needing to stand. (Tr. 114.) He was not supposed to lift more than 20 pounds. (Id.) His

back pain also became worse when he stepped off a curb or rode in a car. (Tr. 122.)

Mr. Brown had tried “countless” pain medications and was taking several non-narcotics.

(Tr. 115.) He took Valium as needed for anxiety and Zanaflex as needed for upper back pain.

(Tr. 116.) However, he only took these medications about twice a month because they could be

addictive. (Id.) He had his medical marijuana card and found marijuana helpful to treat anxiety.

(Tr. 117.) The only side effect he noticed was tiredness while driving. (Id.)

Mr. Brown had lived with his uncle for three to four years. (Id.) He saw other family

members when they stopped by the house. (Id.) His parents usually came over two or three

times a week, and his other uncle stopped by almost every day. (Id.) Mr. Brown got along well

with his family members. (Tr. 118.)

On a typical day, Mr. Brown got up, let out his dog, and visited with his uncle for 15-20

minutes before going to lie in bed. (Id.) During the day he laid in bed and watched television,

only getting up for 15-minute increments to talk with his uncle. (Tr. 118-19.) He could shower

with a shower chair and dress himself. (Tr. 119.) On days he had not slept well, he was in more

pain and it was hard to get out of bed. (Tr. 124.) Then he did not change clothes but stayed in

bed on his massage pad. (Id.) His uncle bought him a Tempur-Pedic mattress that could be

raised up and down, and Mr. Brown only felt relief when his legs were up. (Tr. 124-25.) He had

five or six bad days like this a week. (Id.) He often could not sleep due to pain and anxiety and

had not slept for days before the hearing. (Tr. 125.) A good night of sleep was seven hours, and

a bad night was four hours; he had not slept seven hours in a long time. (Id.)

Mr. Brown could make a simple meal and clean up after himself if it only took a few

minutes. (Tr. 119-20.) He had a dog but did not walk it. (Tr. 120.) He could not do household

chores that required bending over or stretching, such as cleaning the floor or making his bed.

(Tr. 122-23.) His parents and nephew came over to help him complete these tasks. (Tr. 123.)

2. Plaintiff’s 2024 Testimony

On February 23, 2024, Mr. Brown answered questions posed by his attorney. (Tr. 825-

51.) He described lower back pain that felt like “somebody beat [him] with a baseball bat” and

at times “like an ice pick” in his spine. (Tr. 828-29.) Some days the pain shot up his spine and

made it difficult to lay down. (Tr. 829.) He experienced low back pain every day and shooting

pain three or four times a week. (Id.) The pain was worsened or triggered by standing or sitting

too long, bending over, twisting at the hip, and driving. (Id.) It caused Mr. Brown to toss and

turn most nights, getting four hours of sleep a night on average. (Id.) This caused him to have

low energy and feel irritable, sad, and anxious. (Tr. 830.) He had sleep medication that allowed

him to sleep six or seven hours, but he did not take it every night because it is addictive. (Id.)

Mr. Brown continued to live with his uncle. (Tr. 831.) He no longer did any cooking

because he could not stand in the kitchen long enough to make something that did not come in a

can or a box. (Id.) He could wash a couple of dishes but not a full sink because he could only

stand for 15-20 minutes at a time. (Id.) He did not do chores such as vacuuming, sweeping, and

mopping. (Id.) His mother and nephews came to help him clean his room. (Tr. 831-32.) Mr.

Brown could put his clothes in the washer and dryer but could not stand long enough to fold

them, so his uncle did his laundry. (Tr. 832.) (Id.) He had no problems changing his clothes but

could only shower with a shower chair. (Id.) On the days he had shooting pain in his spine, he

did not shower or change his clothes; he just laid on his Tempur-Pedic bed with his feet elevated.

(Id.) This happened three or four times a week and was “usually an all-day thing.” (Id.)

Mr. Brown could usually sit for 15-20 minutes before standing unless he was on his

Tempur-Pedic mattress. (Tr. 833.) After sitting 15-20 minutes, he would stand for a few

minutes then lie down. (Id.) After lying down for 45 minutes to an hour, he could sit in a chair

for another 15-20 minutes. (Id.) Mr. Brown had started seeing a pain specialist, but his back

pain had not changed much since his surgery in 2018. (Id.)

Regarding his cardiac health, Mr. Brown took half a dozen pills every morning and three

or four at night to control his blood pressure and heartbeat. (Id.) He dealt with a spiking blood

pressure or pulse “90% of the time,” and experienced chest pains two or three times a week.

(Id.) The chest pain felt like a “tight stabbing” in the middle of his chest, and sometimes it felt

hard to breath. (Tr. 834.) The chest pain, tightness, and shortness of breath did not have a

specific trigger—it could occur while Mr. Brown was sitting and watching television. (Id.) He

had stopped eating salt, cholesterol, and caffeine but still experienced episodes of chest pain,

which could last a few minutes to an hour or two. (Id.) When they lasted longer, Mr. Brown

chewed baby aspirin, which helped sometimes. (Id.)

3. Medical Expert Testimony

Medical expert John F. Kwock, M.D., testified on February 24, 2024. (Tr. 835-43.) Dr.

Kwock had never treated or examined Mr. Brown, but he reviewed the medical records in

preparation for the hearing. (Tr. 835.)

Based on the documents he had reviewed, Dr. Kwock testified that Mr. Brown had the

medically determinable impairment: status post decompression fusion of the lumber spine. (Tr.

836.) This impairment did not meet or medically equal a Listing. (Id.) It had reached a level of

recognizable severity in January 2018. (Tr. 837.)

Dr. Kwock opined that limitations were warranted based on Mr. Brown’s condition, and

the record supported a light exertional level. (Id.) He opined that Mr. Brown could: lift and

carry up to 10 pounds frequently and up to 20 pounds occasionally; sit for six hours in an eight-

hour workday; and stand or walk for six hours in an eight-hour workday. (Id.) There was no

evidence that a mechanical assistive device was necessary, and Mr. Brown had no upper

extremity limitations. (Tr. 838.) He could: frequently use his feet to push, pull, or operate a

pedal bilaterally; climb stairs and ramps; and balance and kneel. (Id.) He could occasionally

stoop, crouch, crawl, and climb ladders and scaffolds. (Id.) He could occasionally be exposed to

unprotected heights and work in proximity to heavy moving machinery. (Tr. 838-39.)

Dr. Kwock reviewed Dr. Smallwood’s opinion. (Tr. 839.) He said his opinion differed

from Dr. Smallwood’s because every reviewing physician basis their opinion on the medical

facts in front of them, their training and experience, the diagnoses given, and the purpose of the

opinion. (Id.) Dr. Kwock based his opinion on what he believed to be the objective facts before

him. (Id.) Upon questioning by Plaintiff’s attorney, Dr. Kwock said he did not think Dr.

Smallwood’s opinion was reasonable, and he did not find anything in the record that would

support or substantiate the limitations opined by Dr. Smallwood. (Tr. 840.)

When asked why he did not agree with Dr. Mikalov’s or Dr. Manos’s opinion, Dr.

Kwock said he did not know who they were and that the only RFC he reviewed was Dr.

Smallwood’s. (Id.) It became clear that while Dr. Kwock had reviewed the medical records

from Mr. Brown’s treating physicians, he had not reviewed Dr. Smallwood’s most recent

treatment notes and had not reviewed portions of the record created by the Social Security

Administration (“SSA”), including the opinions of Drs. Mikalov and Manos on initial review and

reconsideration of Mr. Brown’s SSI application. (Tr. 841-42.) Dr. Kwock testified that medical

experts were not usually provided the administrative materials for review. (Tr. 843.) Mr.

Brown’s attorney asked the ALJ to send Dr. Kwock interrogatories because he had not reviewed

all of Dr. Smallwood’s treatment records. (Tr. 842.) The ALJ agreed to provide Dr. Kwock with

interrogatories and copies of the medical records identified by Plaintiff’s attorney. (Tr. 842-43;

see Tr. 1427-37 (request for medical interrogatory sent February 24, 2024).)

On August 29, 2024, Dr. Kwock testified at a supplemental hearing regarding his

response to the interrogatories. (Tr. 1564-84; see Tr. 1469-77 (response to interrogatories).) He

had reviewed updated medical records provided by Plaintiff. (Tr. 1569.) He affirmed that the

only medically determinable impairment was status post decompression fusion procedure on the

lumbar spine, going back to January 2018, and that this impairment did not meet or medically

equal a Listing. (Tr. 1569-70.) He affirmed his functional limitation opinion from the previous

hearing with the exception that he now found the record did contain evidence that a mechanical

or assistive device was medically necessary for Mr. Brown to ambulate. (Tr. 1570-71.)

Dr. Kwock acknowledged that Dr. Smallwood’s two RFC opinions differed from his.

(Tr. 1571.) Upon questioning by Plaintiff’s attorney, he stated that Dr. Smallwood “could be

perfectly right. I don’t know.” (Tr. 1572.) He did not speak with Dr. Smallwood, did not know

how he developed his opinion, and did not know how he thought. (Id.) In his opinion, there was

no objective musculoskeletal evidence in the record that would support the level of limitation

opined by Dr. Smallwood. (Tr. 1572-73.)

Plaintiff’s attorney read a portion of Dr. Smallwood’s opinion into the record that

identified “clinical and objective signs” that supported his opinions, including “antalgic gait,

abnormal imaging of spine.” (Tr. 1573.) Dr. Kwock stated those were objective observations,

not objective findings. (Id.) He further explained that in his review of the medical records, he

did not see physical examinations that contained evidence suggestive of a problem in the lumbar

spine. (Tr. 1573-74.) The most recent MRI, from December 2020, showed no abnormalities in

the lumber spine and used adjectives such as “mild,” “very small,” and small” to described

degenerative changes in other parts of the spine. (Tr. 1574.) As an orthopedic surgeon, Dr.

Kwock did not find that these records showed “big issues” or issues that were “pain generators.”

(Id.) He explained that even when a patient is limping around in front of him, he must come up

with a medical explanation for the condition; the objective evidence in this record did not

suggest to him a person with Mr. Brown’s clinical picture. (Tr. 1574-75.)

4. Vocational Expert’s Testimony

A Vocational Expert (“VE”) testified on February 23, 2024. (Tr. 845-51.) The VE

testified that a hypothetical individual of Plaintiff’s age, education, and work experience, and the

function limitations described in the ALJ’s RFC determination could perform representative

positions in the national economy, including marker, collator operator, and mail clerk. (Tr. 846.)

If a sit/stand opinion were added, allowing the individual to alternate positions in the immediate

vicinity of the workstation every 30 minutes while remaining on task at least 90% of the

workday, the VE testified that the marker position would no longer be available, the number of

mail clerk positions would be reduced by 60%, and collator operator positions would be reduced

by 25%. (Id.) With this additional restriction, photocopy machine operator would be available

at a reduced percentage. (Tr. 847.) If the hypothetical individual could only work at a sedentary

level of exertion with the all the limitations included in the first two hypotheticals, available jobs

would include document preparer, inspector, and table worker. (Id.) The VE also testified that it

would preclude competitive employment if the person would either be off task 15% of the

workday or absent more than one day per month on a regular and ongoing basis. (Tr. 847-48.)

If an individual could only sit for two hours and stand or walk for less than two hours, the

VE testified that it would be work preclusive. (Tr. 850.) If an individual needed five

unscheduled, 10-15 minutes breaks per day, that would also be work preclusive. (Tr. 850-51.)

III. Standard for Disability

Under the Social Security Act, 42 U.S.C. § 423(a), eligibility for benefit payments

depends on the existence of a disability. “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).

An individual shall be determined to be under a disability only if his physical or

mental impairment or impairments are of such severity that he is not only unable to

do his previous work but cannot, considering his age, education, and work

experience, engage in any other kind of substantial gainful work which exists in the

national economy[.]

42 U.S.C. § 423(d)(2)(A).

To make a determination of disability under this definition, an ALJ is required to follow a

five-step sequential analysis set out in agency regulations, summarized as follows:

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

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

be severe before he can be found to be disabled.

3. If the claimant is not doing substantial gainful activity, is suffering from a

severe impairment that has lasted or is expected to last for a continuous

period of at least twelve months, and his impairment meets or equals a listed

impairment, the claimant is presumed disabled without further inquiry.

4. If the impairment does not meet or equal a listed impairment, the ALJ must

assess the claimant’s residual functional capacity and use it to determine if

the claimant’s impairment prevents him from doing past relevant work. If

the claimant’s impairment does not prevent him from doing his past relevant

work, he is not disabled.

5. If the claimant is unable to perform past relevant work, he is not disabled if,

based on his vocational factors and residual functional capacity, he is

capable of performing other work that exists in significant numbers in the

national economy.

20 C.F.R. § 416.920; see also Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987). Under this

sequential analysis, the claimant has the burden of proof at Steps One through Four. See Walters

v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the

Commissioner at Step Five to establish whether the claimant has the RFC and vocational factors

to perform other work available in the national economy. Id.

IV. The ALJ’s Decision

In his September 19, 2024 decision, the ALJ made the following findings:2

1. The claimant has not engaged in substantial gainful activity since May 5,

2021, the application date. (Tr. 803.)

2. The claimant has the following severe impairments: COPD; major

depressive disorder; anxiety disorder; degenerative disk disease of the

lumbar and thoracic/scoliosis/Scheuermann’s kyphosis, status post-

laminectomy syndrome/spondylolisthesis/spondylolysis; ischemic

cardiomyopathy/hypertensive heart disease and asymptomatic episodic

tachycardia. (Id.)

3. The claimant does not have an impairment or combination of impairments

that meets or medically equals the severity of the listed impairments in 20

C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 804.)

4. The claimant has the residual functional capacity to perform light work as

defined in 20 CFR § 416.967(b) except: occasionally climbing ladders,

ropes, or scaffolds; frequently climbing ramps and stairs; frequent

balancing and kneeling; occasional stooping, crouching, and crawling;

frequent use of bilateral lower extremities for pushing, pulling, and

operation of foot controls. Environmental limitations to avoid more than

occasional concentrated exposure to moving mechanical parts, vibrations,

2 The ALJ’s findings are summarized.

high exposed areas, and irritants such as fumes, odors, dust, gases, extreme

cold, extreme heat, humidity, and wetness. He can: understand, remember,

and carry out simple instructions for work not requiring hourly quotas or a

specific production rate pace, such as assembly line work; use judgment to

make simple, work-related decisions, with occasional changes in a routine

work setting; and tolerate occasional interaction with the general public,

coworkers, and supervisors. (Tr. 807.)

5. The claimant has no past relevant work. (Tr. 815.)

6. The claimant was born on September 27, 1984 and was 36 years old,

defined as a younger individual, on the date the application was filed. (Id.)

7. The claimant has a limited education. (Id.)

8. Transferability of job skills is not an issue because the claimant has no past

relevant work. (Id.)

9. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform, including marker, collator

operator, and mail clerk. (Tr. 816.)

Based on the foregoing, the ALJ determined that Plaintiff had not been under a disability,

as defined in the Social Security Act, from May 5, 2021, the date the application was filed. (Id.)

V. Plaintiff’s Arguments

Plaintiff brings three assignments of error: (1) the ALJ failed to comply with the remand

order and incorrectly applied res judicata in his review of the 2020 ALJ decision when he found

that new and material evidence showed Plaintiff could work at the light exertional level rather

than the sedentary exertional level (ECF Doc. 8, pp. 10-15); (2) the ALJ failed to comply with

the remand order when he did not properly evaluate the treating source medical opinions (id. at

pp. 15-24); and (3) the ALJ failed to provide a record of the supplemental hearing (id. at p. 24).

This last assignment of error was addressed when the Commissioner supplemented the record

with a transcript of the supplemental hearing. (ECF Doc. 11.)

VI. Law & Analysis

A. Standard of Review

A reviewing court must affirm the Commissioner’s conclusions absent a determination

that the Commissioner has failed to apply the correct legal standards or has made findings of fact

unsupported by substantial evidence in the record. See Blakley v. Comm’r of Soc. Sec., 581 F.3d

399, 405 (6th Cir. 2009) (“Our review of the ALJ's decision is limited to whether the ALJ

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

substantial evidence.”).

When assessing whether there is substantial evidence to support the ALJ’s decision, the

Court may consider evidence not referenced by the ALJ. Heston v. Comm’r of Soc. Sec., 245

F.3d 528, 535 (6th Cir. 2001). “Substantial evidence is more than a scintilla of evidence but less

than a preponderance and is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Besaw v. Sec’y of Health & Hum. Servs., 966 F.2d 1028, 1030

(6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Hum. Servs., 889 F.2d 679, 681 (6th Cir.

1989)). The Commissioner’s findings “as to any fact if supported by substantial evidence shall

be conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing

42 U.S.C. § 405(g)). “’The substantial-evidence standard . . . presupposes that there is a zone of

choice within which the decisionmakers can go either way, without interference by the courts.’”

Blakley, 581 F.3d at 406 (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)).

Therefore, a court “may not try the case de novo, nor resolve conflicts in evidence, nor decide

questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if

substantial 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).

Although an ALJ decision may be supported by substantial evidence, the Sixth Circuit

has explained that the “‘decision of the Commissioner will not be upheld where the SSA fails to

follow its own regulations and where that error prejudices a claimant on the merits or deprives

the claimant of a substantial right.’” Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 651

(6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-547 (6th Cir. 2004))). A decision will also not

be upheld where the Commissioner’s reasoning does not “build an accurate and logical bridge

between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio

2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)).

Because the Court concludes that the error alleged in Plaintiff’s second assignment of

error warrants remand, the Court addresses the assignments of error out of order.

B. Second Assignment of Error: The ALJ Did Not Adequately Explain His Evaluation

of the Consistency of Treating Source Chris Smallwood, M.D.’s Medical Opinion

In his second assignment of error, Plaintiff argues that the ALJ failed to properly evaluate

the medical opinions of treating sources Dr. Smallwood and CNP Brown. (ECF Doc. 8, pp. 15-

24.) In particular, he argues that the ALJ “offered an inadequate analysis” and “failed to proffer

a coherent explanation” in support of his findings regarding Dr. Smallwood’s opinion. (Id. at p.

20.) The Commissioner argues in response that the ALJ reasonably discounted the treating

medical opinions, explained his findings, and made findings that were supported by substantial

evidence. (ECF Doc. 13, pp. 7-8.)

1. Framework for the Evaluation of Medical Opinion Evidence

The SSA’s regulations for evaluating medical opinion evidence require ALJs to evaluate

the “persuasiveness” of medical opinions “using the factors listed in paragraphs (c)(1) through

(c)(5)” of the regulation. 20 C.F.R. § 404.1520c(a); see Jones v. Comm’r of Soc. Sec., No. 3:19-

CV-01102, 2020 WL 1703735, at *2 (N.D. Ohio Apr. 8, 2020). The five factors to be

considered are supportability, consistency, relationship with the claimant, specialization, and

other factors. 20 C.F.R. §§ 404.1520c(c)(1)-(5). The most important factors are supportability

and consistency. 20 C.F.R. §§ 404.1520c(a), 404.1520c(b)(2). ALJs must explain how they

considered consistency and supportability but need not explain how they considered the other

factors. 20 C.F.R. § 404.1520c(b)(2).

As to supportability, the regulations state: “The more relevant the objective medical

evidence and supporting explanations presented by a medical source are to support his or her

medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical

opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). In

other words, “supportability” is the extent to which a medical source’s own objective findings

and supporting explanations substantiate or support the findings in the opinion.

As to consistency, the regulations state: “The more consistent a medical opinion(s) or

prior administrative medical finding(s) is with the evidence from other medical sources and

nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior

administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2). In other words,

“consistency” is the extent to which a medical source’s opinion findings are consistent with the

evidence from other medical and nonmedical sources in the record.

In reviewing an ALJ’s medical opinion analysis, courts must consider whether the ALJ:

considered the full record in assessing the persuasiveness of the opinion; appropriately

articulated his reasons for finding the opinion unpersuasive; and made findings supported by

substantial evidence. See 20 C.F.R. § 404.1520c (governing how ALJs consider and articulate

findings re: medical opinions); 20 C.F.R. § 404.1520(e) (findings re: RFCs will be “based on all

the relevant medical and other evidence” in the case record); see also Blakley, 581 F.3d at 405.

2. The ALJ Did Not Adequately Explain His Findings Regarding the

“Consistency” of Dr. Smallwood’s Medical Opinions and Failed to Build an

Accurate and Logical Bridge Between the Evidence and the Result

The ALJ analyzed Dr. Smallwood’s medical opinions as follows:

The undersigned finds Dr. Smallwood’s opinion not entirely persuasive, as it is

inconsistent with the medical record as a whole. . . . 3 Furthermore, such extreme

limitations are not supported by the medical evidence of record. The medical

evidence[] of record supports a finding that the claimant is more capable than Dr.

Smallwood opined. Dr. Smallwood’s opinion is supported by the findings

documented in their own notes, which includes that the claimant has “limited

mobility due to spinal disease and a subsequent fusion procedure” (Exhibit B11F

at 4). Additionally, Dr. Smallwood noted, the claimant’s “pain and cardiac disease

severely limits his activity level” (Exhibit B28F at 3). However, Dr. Smallwood’s

opinion is inconsistent with the objective findings reported by other sources, which

includes that the claimant noted that his “pain does not interfere with ability to

bathe, dress, or groom.” For exercise, the claimant was walking daily,

approximately one mile per day (Exhibits B22F at 13, B25F at 1). This is not

consistent with severe limits his [sic] activity level.

(Tr. 812 (emphasis added).) Thus, the ALJ addressed “supportability” by concluding that

specific “findings documented in [Dr. Smallwood’s] own notes” supported his medical opinions,

and addressed “consistency” by finding generally that: the opinions are “inconsistent with the

medical record as a whole”; the “extreme limitations are not supported by the medical evidence

of record”; and the opinions are “inconsistent with the objective findings reported by other

3 Since the parties focus their arguments on Dr. Smallwood’s opinions as to Plaintiff’s physical limitations, the

ALJ’s discussion and analysis of Dr. Smallwood’s opinion that Plaintiff is unable to perform “low stress work” is

not summarized above or otherwise addressed in this Court’s analysis.

sources.” (Tr. 812.) Although the ALJ bases his consistency analysis on a determination that

objective findings from other medical sources are inconsistent with Dr. Smallwood’s opinions,

the only evidence he cites in support are Plaintiff’s subjective statements—in a single physical

therapy note—that pain does not interfere with his ability to bathe, dress, and groom, and that he

was walking daily, approximately one mile per day. (Tr. 812 (citing Tr. 1454, 1481).)

Plaintiff argues that the treatment note cited in support of the ALJ’s consistency finding

actually supports Dr. Smallwood’s opinions, noting that the physical examination findings from

that visit—the objective clinical findings—note diminished sensation in the left leg at the L5

dermatome, diminished reflexes at S1 bilaterally, and tenderness. (ECF Doc. 8, p. 17 (citing Tr.

1457).) Indeed, the examination findings from that visit also note 4/5 motor strength in both

legs, limited lumbar flexion, absent lumbar extension, an inability to perform Faber’s test due to

increased back pain, and an inability to perform heel walking due to poor balance. (Tr. 1457.)

Plaintiff also argues that the objective findings in other medical records support Dr. Smallwood’s

opinion and further asserts that the ALJ failed to provide a coherent explanation for his

conclusions regarding the persuasiveness of Dr. Smallwood’s opinions. (ECF Doc. 8, p. 20.)

The Commissioner offers two arguments in support of the ALJ’s persuasiveness findings.

(ECF Doc. 13, p. 7.) Unfortunately, the first argument misrepresents the ALJ’s written findings

and supporting citations. The Commissioner asserts that the ALJ “noted Dr. Smallwood’s

opinion was not fully supported by his own findings,” highlighting physical examination findings

from two treatment visits with Dr. Smallwood that the ALJ purportedly cited in support of his

opinion analysis, noting that Dr. Smallwood “failed to specifically examine Plaintiff’s back.”

(Id. (citing “Tr. 812 (citing 782, 1389)”) (emphasis added).) In fact, the ALJ found that “Dr.

Smallwood’s opinion is supported by the findings documented in [his] own notes,” and did not

cite either of the records identified by the Commissioner in support of his opinion analysis. (Tr.

812 (emphasis added) (citing Tr. 772, 1560).) While the ALJ did cite portions of the referenced

treatment visits in his summary of the medical records, he only discussed Plaintiff’s subjective

reports at those visits, without any reference to Dr. Smallwood’s clinical examination findings.

(See Tr. 810 (citing Tr. 782 (“In December 2021, the claimant noted that he was not working and

believes that he is unable to work, due to back pain. He asked for disability paperwork to be

completed.”); Tr. 1387 (“In January 2024, the claimant was complaining of low back pain, and

he stated his pain is ‘a little worse right now.’ He is awaiting a new appointment with pain

management.”)).) Because the Commissioner’s first argument in support of the ALJ’s opinion

analysis relies on both misstatements and post hoc rationalizations, it is unconvincing.

In his second argument, focusing on the ALJ’s consistency analysis, the Commissioner

asserts: “the ALJ explained Dr. Smallwood’s opinion was inconsistent with Plaintiff’s own

statements that pain did not interfere with his ability to bathe, dress, or groom.” (ECF Doc. 13,

p. 7 (citing Tr. 812, 1454).) But this brief argument does not address or account for the fact that

the ALJ specifically stated that Dr. Smallwood’s opinions were inconsistent with “the objective

findings reported by other sources,” but exclusively cited and referenced Plaintiff’s subjective

statements regarding daily activities to support that finding. (Tr. 812 (emphasis added).)

It is well established that “‘[a]n agency’s actions must be upheld, if at all, on the basis

articulated by the agency itself,’ . . . and not based on ‘appellate counsel’s post hoc

rationalization[s].’” Hicks v. Comm’r of Soc. Sec., 909 F.3d 786, 808 (6th Cir. 2018) (quoting

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) and

Comcast Cablevision-Taylor v. N.L.R.B., 232 F.3d 490, 497 (6th Cir. 2000)). Certainly, it is not

this Court’s role “to scour the record for evidence . . . which the ALJ might have relied on and

which could support a finding of no-disability if the ALJ actually considered it.” Karger v.

Comm’r of Soc. Sec., 414 F. App’x 739, 754 (6th Cir. 2011) (emphasis in original).

Nevertheless, an ALJ need not restate information he articulated earlier in his decision to

support a later analysis. See Crum v. Comm’r of Soc. Sec., 660 F. App’x 449, 457 (6th Cir.

2016) (citing Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir. 2014)); Bledsoe v.

Barnhart, 165 F. App’x 408, 411 (6th Cir. 2006) (finding an ALJ need not “spell out every fact a

second time”). He also need not “discuss each piece of data in [his] opinion, so long as [he]

consider[s] the evidence as a whole and reach[es] a reasoned conclusion.” Boseley v. Comm’r of

Soc. Sec. Admin., 397 F. App’x 195, 199 (6th Cir. 2010) (citing Kornecky v. Comm’r of Soc.

Sec., 167 F. App’x 496, 507-08 (6th Cir. 2006) (per curiam)).

The Court will therefore consider whether the ALJ’s earlier summary of the medical

records sheds light on his later conclusion that “Dr. Smallwood’s opinion is inconsistent with the

objective findings reported by other sources.” (Tr. 812.) In that written summary, the ALJ

discussed: Mr. Brown’s 2018 lumbar surgery and associated x-rays (Tr. 808-809); his complaints

of ongoing pain in 2019, with associated treatment and use of a bone growth stimulator (Tr.

809); his complaints of ongoing pain in 2020, observations of his gait in January 2020, an

October 2020 CT scan, and discussion of his treatments and treatment recommendations (id.); a

January 2021 lumbar x-ray, a July 2021 pulmonary function test, and Plaintiff’s treatments for

various conditions in 2021 (id.); Plaintiff’s statements to providers in 2021 regarding his

activities, pain, and perceived ability to work (Tr. 810); Plaintiff’s subjective complaints,

treatment with physical therapy, and cardiac treatment for an NSTEMI in 2022 (id.); cardiac

evaluations and treatment in 2023, including a note that his ejection fraction had normalized

(id.); and complaints of pain and pain management treatment in 2024, including plaintiff’s report

that he could bathe, dress, and groom, and that he walked daily, and injuries from a 2024 vehicle

collision (id.). Thus, the objective findings discussed in the ALJ’s summary of medical records

spanning from 2018 through 2024 appear to be limited to the findings in a few lumbar x-rays,

one lumbar CT scan, one pulmonary function test, and one echocardiogram. Other than one

observation regarding Mr. Brown’s gait in January 2020, there is no discussion of physical

examination findings. This summary—which focuses largely on subjective reports and treatment

modalities—sheds little light on what objective findings the ALJ intended to reference when he

found Dr. Smallwood’s opinion inconsistent with “objective findings reported by other sources.”

The ALJ’s analysis of other medical opinions provides little further assistance in

understanding his assessment of Dr. Smallwood’s opinion. Indeed, the ALJ repeatedly makes

the same contradictory finding that an opinion is consistent or inconsistent with “objective

findings” based on the two subjective statements the ALJ cited in analyzing Dr. Smallwood’s

opinions. (See Tr. 811 (finding opinion of CNP Brown inconsistent with “objective findings”

based on Plaintiff’s subjective reports); Tr. 813-14 (finding third party statement not supported

by “objective findings” based on Plaintiff’s subjective reports); Tr. 814 (finding opinion of Dr.

Kwock consistent with “objective findings” based on Plaintiff’s subjective reports).

The only opinion analysis where the ALJ actually cites to objective findings in support of

his conclusion that a medical opinion was inconsistent with “objective findings reported by other

sources” is his analysis of the state agency medical consultants’ opinions, where he cites to a

January 2021 lumbar x-ray showing a stable L5-S1 interbody fusion and a September 2023

report that Plaintiff’s ejection fraction had normalized. (Tr. 814 (citing Tr. 599, 1410).)

Notably, his description of the January 2021 x-ray leaves out an additional finding of moderate

degenerative changes with multilevel chronic wedge compression fractures and exaggerated

lumbar lordosis. (Compare Tr. 809, 814 with Tr. 599.)

Finally, in concluding his RFC analysis, the ALJ cites exclusively to Plaintiff’s subjective

statements regarding his activities and pain in concluding that Plaintiff’s “alleged symptoms and

limitations may have been overstated,” without addressing any objective findings. (Tr. 815.)

There is no discussion of what objective findings the ALJ finds supportive of the RFC, let alone

an explanation as to why those findings support the ALJ’s conclusions.

Having considered the ALJ’s complete written decision, this Court concludes that the

ALJ has failed to adequately articulate his reasons for finding Dr. Smallwood’s medical opinion

was “inconsistent with the medical record as a whole,” and more specifically “inconsistent with

the objective findings reported by other sources.” (Tr. 812 (emphasis added).) In so finding, the

Court has considered: the ALJ’s reference only to subjective reports in support of this finding,

even though the cited medical records did contain abnormal objective physical examination

findings; the ALJ’s limited discussion of objective findings in his summary of medical records

spanning over six years, including virtually no physical examination findings and a shortened

description of a January 2021 x-ray that leaves out significant abnormal findings; and the ALJ’s

repeated reliance on the same subjective reports in his analysis of other opinions, each time

describing them as “objective findings.” On this basis, the Court concludes that the ALJ did not

adequately articulate his analysis of the consistency of Dr. Smallwood’s medical opinions and

failed to build “an accurate and logical bridge between the evidence and the result.” Fleischer,

774 F. Supp. 2d at 877; see id. at 881 (“In rendering his RFC decision, the ALJ must give some

indication of the evidence upon which he is relying[.]”) (citations omitted).

For the reasons set forth above, the undersigned concludes that the ALJ committed

reversible error and failed to build a logical bridge between the evidence and the result when he

failed to clearly articulate his grounds for finding Dr. Smallwood’s medical opinions were

inconsistent with the “objective findings reported by other sources.” Accordingly, the

undersigned finds Mr. Brown’s second assignment of error is well-taken.4

VII. Conclusion

For the foregoing reasons, the Court VACATES and REMANDS the case pursuant to

42 U.S.C. § 405(g) sentence four, for further proceedings consistent with this Order. On remand,

the ALJ should consider the entire record and provide a clear, accurate, and well-reasoned

explanation to support his findings regarding the persuasiveness of all medical opinion evidence,

including the medical opinion of treating physician Christopher Smallwood, M.D., and ensure

that his stated rationale builds an accurate and logical bridge between the evidence and the result.

February 11, 2026

/s/Amanda M. Knapp

AMANDA M. KNAPP

United States Magistrate Judge

4 Given this Court’s determination that remand is warranted, it is unnecessary to address the first or third assignment

of error or any of the sub-arguments raised in the second assignment of error.